Greg's bite: Apple's patent app drawing flap
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Greg's bite: Apple's patent app drawing flap

By Greg Mills

I was shocked, as were many other Apple observers that an Apple patent application sported an obvious rip-off of the user interface of an iOS app on the Apple App Store called "Where To?"  Apple files hundreds of patent applications on everything they do.  

Playing the tech "that is covered by our patent" game in federal court requires all the legal ammunition possible, so they try to protect all their ideas. A recent Apple patent app that was published by the US Patent Office included an illustration, in line drawing form, that was clearly an illustration of an existing iOS App owned by someone else. This gaff was no doubt embarrassing to the legal staff at Apple and I bet someone got their butt in a sling over it.

Apple has a sort of "white knight aura" about it on intellectual property issues. Apple often the target of patent trolling artists hoping to cash in on Apple's success. While certainly, in a competitive market with a rather obscure US patent process, fraught with ambiguity, disputes over technology are bound to occur. However, this obvious use of someone else's technology was quite blunt. The developer who placed his app in the iTunes store never anticipated that Apple would like their user interface so much they would try to patent it. That does not actually tell the true story.

As it turns out, what is obvious on its face is not quite as it seemed. Most people when they look at a patent turn first to the drawings to understand what the patent is all about. While professionals look at the drawings, they also read the claims, which are really the heart of a patent. The drawings just help to explain the claims. As it turns out, the now famous drawing was used, without permission, to illustrate something not related to the user interface or app that was shown.  The gaff was in not attributing the art to the app developer, not in actually trying to steal their technology.

The fine print of app developer contracts and Apple App Store posting might actually allow Apple to use the likeness of an app posted on their servers. I hear Apple apologized to the developer and an attorney for the developer advises that no harm has been done other than a few feathers being ruffled. From a PR point of view, while this does not rise to iPhone 4 "Antennagate" proportions, it was embarrassing to say the least and put Apple in a bad light.

I will admit, my first reaction was shock that Apple would have "stolen" the look and feel of an app posted by a developer.  I am glad the first impressions were wrong and my confidence in Apple respecting intellectual property rights is well placed.

This leads me to an interesting issue. What legal protection do developers have when they post an app on-line? The range of intellectual property protection methods are Utility Patents, Design Patents, Copyrights and Trademarks. Each of these registered intellectual property schemes have certain uses and weaknesses.  

Apps generally can be protected by copyrights, since they contain unique lines of code that can be recorded in written form and thus be protected from those who would copy that code to use without permission from the author. Some apps might qualify for utility patents since they operate devices and have unique functions. Copyrights are much cheaper and easier to obtain than patents, but each have uses in Federal Court, should a legal dispute arise.  

I suspect ideas will be ripped off left and right as "hobby app creator" software becomes available for both the Android and iOS platforms. I have coined the term "hobby apps" to
differentiate the apps created by professional developers from the drag and drop simple app developer programs that are coming. These hobby app creator programs will allow anyone to create simple apps using a visual set of templates that are manipulated on-screen to create a simple app. You can name the app, use artwork and get it to do cool things. You can then post it on line for the general public to download for a fee or for free.  

I see professionals scouring the hobby apps posted on-line for good ideas to use for more professionally developed apps that are much more sophisticated and better designed. Here is the problem: how does Apple or Google handle disputes over who wrote what? Do they just post apps on-line with a disclaimer that they are not responsible for intellectual property disputes without a legal opinion or document to support such rights?

The experience of the App industry so far, is that Apple does seek to protect copyrights and patents when a dispute comes up. I have an old copy of Tris still running on my iPhone. That app was so close to Tetris that when the owners of Tetris complained to Apple and presented documentation of their ownership of that protected design, look and feel for their app, Apple pulled Tris from the store, since it obviously was a knock off.

Another scenario that we are bound to see are hobby apps that are posted on-line that steal the look and feel of professional apps and violate copyrights or patents. Any new industry or major technology face novel legal issues that are worked out over time. Apps stores are just beginning to see all these legal issues coming up. Apple must continue to respect intellectual property rights in app, songs, books and software programs to be a success in their app store "go to market" system. I know they are up to it.  he fluke use of someone else's art work is not the norm, and I am glad Apple made peace over it.  

Finally, Apple needs a vice president of Public Relations Management. As the company has grown larger, the gaffs and PR embarrassments need to be more quickly settled. It is taking the ivory palace in Cupertino way too long to respond to PR flaps. The normal secret and press wary Apple needs to be able to open up when an issue comes up much sooner than they have been responding recently. 

(Greg Mills is currently a Faux Artist in Kansas City. Formerly a new product R&D man for the paint sundry market, he holds 11 US patents. He's working on a solar energy startup using a patent pending process of turning waste dual pane glass into thermal solar panels used to heat water. Married, with one daughter still at home, Greg writes for intellectual web sites and Mac related issues. See Greg's web sites at http://www.gregmills.info . He can be emailed at gregmills.mac.)

 

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