It’s pretty easy to argue that software patents are bad for the software industry.
Regardless of where you stand on that issue, however, it must at least give you pause when Apple, who not only exercises final approval over what may be sold on the world’s largest mobile software distribution platform, but also has exclusive pre-publication access (by way of that approval process) to every app sold or attempted to be sold there, quietly starts patenting app ideas.
But even if you’re fine with that, how about this: one of the diagrams in Apple’s patent application for a travel app is a direct copy, down to the text and the positions of the icons, of an existing third-party app that’s been available on the App Store for years.
I can’t see how this is even close to OK.
So, my first thought was that Apple had bought FutureTap, the company that makes Where To. This doesn’t seem to be the case, though, according to a FutureTap tweet. (Twitter is down, so I haven’t read it, yet.)
My next thought is that Apple isn’t actually trying to patent the actual app itself, but is using it as an example to help illustrate (literally) a point. Here’s the paragraph relating to the drawing in question, which is listed as Fig. 6:
FIG. 6 shows diagram 600 of functions available to a user upon arriving at the initial location of a travel itinerary (e.g., an airport) in accordance with some embodiments of the invention. For example, the functions of FIG. 6 may be available to a user during airport scenario 206 of FIG. 2. However, one skilled in the art could appreciate that the functions of FIG. 6 are not limited to an airport scenario or to the particular functions listed in FIG. 6, and rather may include any suitable functions or be used in any suitable scenario.
Apple references the diagram (Fig. 6) and says that it includes features that are made available as the embodiment of the invention. I’m not exactly sure what “the invention” is, but it doesn’t seem to be referring to Fig 6.
The other clue that this isn’t about an underhanded attempt to patent the Where To app is that various pictures showing several completely unrelated app designs are all used to describe this same patent. None of the other drawings are consistent.
As such, my suspicion is still that this is basically much ado about nothing, but I suppose it’s always possible that Apple ripped off someone’s exact design and is now trying to patent it, thinking that no one would notice. (There’s a bit of sarcasm there, but I’m not saying it’s beyond the realm of possibility, either.)
As for the rightness or wrongness of using the likeness of the app, I wonder: Does Apple reserve the right to do that as part of their developer agreement? Apple can presumably use apps as part of their advertisements, etc., and if they’re simply using the likeness of this app to help describe “the embodiment of” a patent invention that would make use of such apps, I’m not sure there’s anything in the developer agreement prohibiting that, is there? [EDIT - I’m not asking whether Apple has the right, as part of the developer agreement, to create or patent an app that is exactly like Where To, right down to the look and feel. I’m asking whether Apple has the right to use screenshots of the Where To app (or even videos of the app in action) to illustrate a point as part of a patent application. If they do, it’s still kind of stupid to do so without informing FutureTap, but there may not be much anyone can do about it.]
Dan Wineman responds:
But there remains a conflict of interest in Apple acting as the sole steward of the iOS software universe while also filing patents in areas that have long been staked out by third-party developers.
Apple definitely has to be careful about this. There have been other instances in which they’ve developed apps which invade the territory of third party developers. With that said, I certainly haven’t read the patent closely enough to understand it, and at this point, all I can tell is that it seems to be rooted in location awareness.
I still get the basic impression that these illustrations—including the Where To app illustration—are there to help describe something else, so beyond “software patents are problematic” (which I don’t disagree with, I guess, though I’m not informed enough to say much on the subject) I just don’t read much into the use of the images.
The real problem, as I see it, is that no one thought to approach FutureTap, and let them know that they’d be doing so. I deal with patent applications a lot at work because they’re often used as evidence in trials that I work on, and there’s no way around the fact that they’re hard to decipher. Bloggers are bound to read a lot into this, and a lot of the speculation is going to be based on a lack of information.
That’s Apple’s fault.
I also asked whether the app store developer agreement involved some sort of clause that allows Apple to utilize apps for purposes such as this:
There may be nothing prohibiting it, but there’s also nothing I know of in the agreement — or good developer relations, or even common decency — that permits it.
I still don’t know and I’m not a developer so I have no way of checking. I think what I was getting at was more along the lines of the agreement I sign with just about every social network I’ve joined: I contribute content, the site contributes an audience and in turn, they’re allowed to use my content pretty much however they want. Newsvine’s user agreement, as an example, states:
You retain all copyright to all original User Content you submit to the Site. By transmitting or submitting User Content to the Site, you hereby grant Newsvine, its Affiliates and sublicensees: (a) a non-exclusive, irrevocable, royalty-free, perpetual and fully sublicensable and transferable right to use, reproduce, modify, adapt, translate, distribute, publish, create derivative works from and publicly display and perform such User Content in any media, now known or hereafter devised; and (b) the right to use the name, identifier, or any portion thereof, submitted in connection with such User Content, if they so choose.
Ultimately, I think the biggest problem (as usual, with Apple) is that this came as a complete surprise to everyone, including FutureTap. I’ll be interested to see how Apple responds to FutureTap’s inquiry.
Not that this adds anything new, but before I’d seen their official response, I sent the FutureTap team an email (asking whether they knew anything at all about the patent) and the short, Jobsian response I received amused me:
Predictably, this is blowing up all over the place. Gizmodo has a piece, TechCrunch has a piece, and—as often as not—there’s no link to the actual patent, no evaluation at all. Just the images and a huge “WTF, APPLE!?” sentiment.
Sometimes, I hate the internet.
FutureTap has posted an update, including Apple’s slightly belated response and explanation. Summary: An amicable ending, nothing to see here, move along.