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Did Apple Slip An Existing Third-Party App Into A Patent Application?

Illustration for article titled Did Apple Slip An Existing Third-Party App Into A Patent Application?

On the left we have an existing iPhone app called Where To, on the right we have an illustration found within a patent application filed by Apple. Is this some sort of cruel joke or just an innocent misunderstanding? Updated.

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The Where To app has been available since the day the Apple App Store launched while the patent application in which the illustration above was discovered was filed by Apple in December 2009. It'd be a pretty big coincidence for the two images to just happen to be so similar, but even intentional similarities do not have to mean that Apple was doing something shady.

Dan Wineman of Venomous Porridge speculated how the situation could be innocent:

The diagram is just part of an example of one way the technology in question might operate.

[...]

I think it's more likely that the people involved in drawing up this patent simply didn't think about the message it would send to developers. I'm sure it's not Apple's practice (or intention) to plunder the App Store submissions bin for new things to patent.

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Basically the patent illustration could actually be a nice compliment from Apple—a message saying that Where To demonstrates a real world application of the technology Apple is patenting nicely. Odd compliment or not though, somehow the whole thing is a bit awkward and just like GigaOm's Om Malik, I'd love to hear some patent lawyers chime in on the whole situation.[Venomous Porridge via GigaOm]

Updated: As TechCrunch points out, this isn't the first or only odd similarity between an existing app and an illustration in an Apple patent application:

Illustration for article titled Did Apple Slip An Existing Third-Party App Into A Patent Application?

Curiouser and curiouser. Still no explanation of the situation from an official source though.

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DISCUSSION

From the Patent Law front:

First a couple of caveats:

(1) Whatever is pictured here - which I assume purports to be from a published patent application - most likely reflects something that was filed in the patent office on or about 18 months prior. Applications, unless they are subject to some sort of secrecy order, are made public within 18 months of their filing date. So this picture may very well be a year and a half old.

(2) Without knowing what the filing date is on the application, what is written below only carries so much weight. It is written from the assumption that this picture apppears from an application that has just published, with what is called a "priority date" 18 months earlier from today.

35 USC 102 - Conditions for Patentability

102(a): one is entitled to a patent UNLESS, the thing that is attempting to be patented is already known or used IN THE U.S - OR - that is patented or published IN A FOREIGN country. You CAN get around this restriction if you can prove you're reduction to practice (read: your "making" of the thing) was before the previous knowledge, use, publication or patent.

102(b): this section is an absolute statutory bar. One is entitled to a patent UNLESS (and this is what really matters in this case) the thing is (1) used or (2) sold IN THE U.S. - OR - (3) patented or (4) published in ANOTHER country GREATER THAN ONE YEAR before the date of the PATENT APPLICATION. Forget for a moment how close this is to 102(a) - they are very similar, indeed, but also very different in practice.

The key in this situation appears these dates: date of use / date of offer to sell and the date to which this patent application appears to "claim priority" = the date that it was filed.

The Skinny (this involves basic arithmetic - adding 1 - and understanding dates):

Considering the age of the app store - opened 7/10/08 - if the app which appears to have been copied were available on the first day the store was opened up, that would create a strict bar to patentability IF the application in which this picture appears has a date later than 7/10/2009 (= 1 year from offer to sell / public use). The latest that you would be seeing this picture for the FIRST TIME if that were the case would be 1/10/2010 (= 18 months after filing and the first date of publication.)

It is worth noting that this bar applies to everyone - Apple, the inventor, you, everyone. So, even if Apple found the person who created the app and put their name on the application as the rightful inventor, that would not make a difference if they (the applicant) sold or anyone in the public used this app beyond that one year window. This is a very strict rule to which the patent office adheres stringently.

Furthermore, there is 102(f) that basically says, "You can't patent it if it's someone else's".

There are certainly a number of convoluted situations that sort of attempt at patentability raises, and I am certain that if this is a true attempt at application, Apple's patent attorneys are on top of that. Not sure how they plan on being in front of this date.