Apple uses third-party app screenshots in patent applications, world erupts in hysteria

By Nilay Patel

posted August 6th 2010 4:51PM

Feature

There's been a bit of a furor in the past couple days over Apple using third-party app screenshots in several patent applications that were just made public -- the most talked-about example is a screenshot of an app called Where To? that appears in a travel-related patent, but other apps like a Ralph Lauren app appear in a shopping-related patent as well. And, since it's Apple, there's been the usual blind panic of hysterical reactions, with some claiming that Cupertino's trying to patent third-party app ideas and pull the rug out from under its own developers. At this point, we hope you know better -- let's take a look at what's really going on.

First of all, all of the patent applications in question are just that -- applications. None of them have been granted, and since all of them are still so new, it's a virtual certainty they'll be narrowed in scope as Apple's attorneys and the Patent Office continue through the patent prosecution process -- a process that typically takes years.

Second, the only operative parts of a patent are the claims -- not the drawings, and not the description, which are technically known as the "specification." (We've now repeated this basic axiom of patent interpretation so many times we're considering making T-shirts.) The only reason the drawings and description are there is to explain the claimed invention in sufficient detail so that someone else can make it. Remember, patents are a trade: in order to get protection, you have to give up the full details of how your invention works. (The other option is to keep your invention a trade secret, but then you can't prevent anyone else from figuring it out and using it if it gets out.) Bottom line? If it's not in the claims, it's not in the patent. So... let's look at the claims, shall we?

Where To? and another app called Guide You Amsterdam both appear in patent application 20100190510 (serial number 642125), which has to do with travel services on mobile devices. The first claim covers knowing that a user is scheduled to travel on a certain date, sensing that the device has been powered off (presumably because it's on a plane), sensing that it's been turned back on (presumably after landing), and then sending an arrival notification to a third-party service (like a hotel). The other claims all add conditions to this patent, narrowing it further -- unless something includes every single element of a claim, it's not covered by the patent, so adding on claims to the first claim just makes the patent more specific and harder to infringe.

Now, we haven't used Where To? or Guide You Amsterdam in any great detail, but we don't think either app includes this functionality, so there's no patent issue here -- even if Apple succeeds in getting this patent, by our reading of the claims it won't have any rights or interests that directly concern these apps. So why are they included as screenshots? Because in the description, Apple goes into great detail about what an associated application with this notification feature might include, saying,

In some embodiments, a user can view available airport services through the integrated application... For example, an interface such interface 602 [the Where To? screenshot] can be provided on a user's electronic device.

That's it -- that's the only reference to Where To? in the whole patent application, and it's as an example of a feature that might be included in another app that includes the invention claimed in this patent application. It's not Where To? itself. Yes, it's a bit rude for Apple to just up and use a screenshot like this, but it's also a bit of a back-handed compliment -- under 35 U.S.C §112, the description must include the "best mode contemplated by the inventor of carrying out his invention." So Apple's saying an app that knows when you've landed and checks in at a hotel might also have features like Where To? and it's naturally using Where To? as the best example of those features. Same with Guide You Amsterdam: the patent application references the screenshot, saying that an app might have information about a destination, but none of the features are actually claimed as part of the patent. To quote a patent attorney friend of ours, "You certainly don't hear about Boeing getting all upset whenever someone uses a 747 silhouette to depict an airplane in a patent application."

As you might imagine, it's the same deal with the shopping app, although patent application 20100191578 (serial number 579756) is much more aggressively broad. The claims cover "providing a complete fashion experience," by attracting users, showing off items with additional information, providing in-store assistance through the app at retail stores, and sending out further offers through the app after purchases. It's really broad stuff -- almost like Apple just stuck a PowerPoint deck in a patent application -- so we'd expect the claims to be narrowed significantly as the process continues, and again, the screenshot of the Ralph Lauren app is an example of the type of app that might use these features. (What's most interesting to us is that the Ralph Lauren app hit the App Store sometime in mid-October 2008, which is close to the exact cutoff date for prior art on this patent -- we've got a feeling there's something else going on with this patent, but we can't tell exactly what it is. Maybe Apple was involved in developing the Ralph Lauren app? It's certainly possible.)

At the end of the day, all this analysis brings us right back to the status quo: like every major technology company, Apple's constantly filing patent applications on a variety of inventions, and some of them are much stronger than others. But looking at these particular patent applications, we can say with reasonable certainty that Apple's not trying to patent specific iPhone apps without the knowledge of their developers -- it's just using them as the best examples of other features. And rest assured, even if Apple were trying to steal apps, using ripped screenshots is maybe the worst possible way of doing it. Now if you'll excuse us, we have some T-shirts to make.