Is Apple the new Patent Office?

This week's uproar over Tweetie v1.3's rejection from the App Store got me thinking that Apple's position is a lot like that of the U.S. Patent Office. In order to explain why, I have to go into a little background...

"Yeah, the Patent Office!"

Over the couple decades, the Patent Office has come under heavy fire from tech pundits and technologists alike. According to critics, they approve many patents in the tech sector which don't actually meet their requirements.  The requirements state that a patentable concept is:

• an invention, rather than a discovery
• original, in the sense that there's no prior art
• non-obvious, in that an expert in the field would not have come up with a similar solution given the problem being solved

Many of the approved patents, particularly software patents, are said to describe discoveries rather than inventions. The corollary is patenting mathematical laws: nature defines these laws, and we work really hard to discover what they are, but nobody invents these laws.

Likewise, with technology, certain discoveries are a natural consequence of the progress we've made so far. For instance, we cannot build database-driven web applications (which most web apps are) in a post-object-oriented world without a "System and method for exchanging data and commands between an object oriented system and relational system" (U.S. Patent No. 6,163,776). Yet these are the sort of concepts that companies are successfully getting patents for and using to sue other software developers.

Computer scientists claim we are discovering natural laws at work when building up software systems from ones and zeroes, just as we are discovering natural laws at work when building mathematics up from Euclid's primary axioms. Having discovered that talking to a relational database from an object-oriented system is necessary, the correct way to achieve this comes to light much as the solution to a mathematical proof does. In this sense, not only is it a discovery, but the "right" solution also frequently fails the non-obvious test in the minds of many coders.

The main issue, according to the tech community, is that patent clerks aren't qualified to judge whether the concepts they are judging actually meet the requirements. They grant patents for things which technologists call discoveries or obvious not because they are stupid, but because technology is complex and the distinctions seem confusing and intricate to outsiders.

What does this have to do with the App Store?

Apple is in charge of deciding whether an application is worthy of the App Store. They have different criteria, and the thing that people "in the know" are complaining about is exclusion from the store, as opposed to the inclusion in the patent space. But people basically have the same complaint: that Apple's decision-makers don't really understand the intricacies well enough to make fair or reasonable judgements.

Tweetie is just the latest example.  However, Apple's quick reversal points out one key difference: there are no checks and balances!  If a patent clerk grants a frivolous or overreaching patent, the courts may eventually weigh in and may decide that it was not, in fact, a valid patent.  

With Apple, the court is somebody else within Apple - somebody who, by all appearances, keeps a close eye on the blogosphere.  They can perhaps be swayed by public opinion, but not in a clear or consistent way.  There is nothing telling developers to whom they should appeal these decisions, and developers are upset.  There is also a lack of transparency - Apple hasn't put forward very specific guidelines on what constitutes "obscene", and developers are upset.

For a patent to be overruled, some enterprising people have to build something that apparently infringes on one of these patents, and then be sued for it.  They have to be willing to go to court, incur a great deal of expense (and possibly an injunction preventing them from doing business while the case is being tried), and have no guarantees that the court will be reasonable about things.  Their alternative, of course, is to pay the patent holder licensing fees and settle out of court.

For an App Store rejection to be overturned, people have to make a big enough stink and be noticed by Apple.  Even then, it may or may not be overturned according to the fates.

This is a huge deterrent to many companies, just as patents are a deterrent.  Most businesses are very wary of entering a space where patents exist since their choices for dealing with it (court fees or pay-offs) don't fit very well in a business plan.  Likewise, many companies won't risk building an iPhone application initially because of the chance of arbitrary rejection. 

We are in a fascinating time - watching the birth of the App Store and the process of determining how its governance will ultimately work.   These decisions affect everyone in the iPhone community, either directly or indirectly.  Hopefully, Apple will put forth clear guidelines, a transparent approval process, and possibly even sketch out an appeals process that works for us.

Comments

[Bob]

Good comparison of the App Store to the patent ofice. The fact that seeds, plants and animals can (and have) all been patented now show's how the rules are bent when the right amount of $$$ are thrown around - the App Store is no different in this regard either.