Balancing Mac Experience with Apple Patents

Question

Like (probably) most people here, I'm not a fan of Software Patents. It makes it hard to write software, especially for an operating system like Mac OS X, where you generally want to do things "the Macintosh way".

But when Apple patents techniques that they use in their own OS and software, it's very difficult for third-party developers to replicate the Mac experience if they are violating a patent.

For instance, there are a couple of instance where I would like to represent a collection of thumbnail images with the "skim" technique used in iPhoto for events and iMovie for scrubbing through a clip. It looks like these are described in patents number 20080225153 and/or 20080155458.

In spite of these patents, and the fairly wide-spread knowledge of their existence (it was highly publicized when iPhoto 08 came out) there are some third-party application that use this skimming technique. So technically they are (probably) in violation of the above patent(s).

But would Apple come down on them if they were to discover them? Is Apple going to go after its own developers? Has anybody heard of that happening before? Is it worth the risk to just go ahead and implement it, with the hopes that Apple won't sue or issue a Cease and Desist?

Answer 1

It would seem to be awfully poor form to go after their own developer base, but companies have acted in stupid ways in the past. The question this is if there is a way to license the patents and/or get a statement of intent?

Whatever your opinion of the company, Microsoft at least did something right with the Open Specification http://www.microsoft.com/Interop/osp/default.mspx

It isn't ironclad, but it at least sets the standard by which they plan to operate in plain view. If Apple has something similar it would definately clear the air. Perhaps in the dev kit there is some clue (I don't do Macintosh development these days, but I don't recall anything like it in the past).

Answer 2

On the bright side, if Apple goes after you and your app for patent infringement, you get a huge amount of free press (and likely sales)!

Answer 3

If you write a piece of software, then you are infringing on someone's patents. Everything's patented. A few years back, some company patented linked lists, for God's sake. Trying to avoid patent infringement is like playing minesweeper with no blank tiles. Honestly, there's not a whole lot you can do about it except hope that no one sues you. Generally, it's not the big companies that do so, but small companies with nothing going for them but a patent portfolio. The big companies never sue each other because they know that all the other big companies have their own stash of patent nukes to launch.

Answer 4

I think this is a question for the higher ups at your company and/or the legal department. I don't think its up to a programmer to resolve the legally gray areas. I think if you get a go ahead from someone higher up or the legal department the responsibility for a lawsuit is no longer on you.

If it is your own company, then you have to weight the cost of asking permission vs the possibility of begging forgiveness. I guess it depends on the breadth of distribution of your app, and how likely it is to compete with an apple product.

Answer 5

Have you considered licensing the patented "technology"? This is one case where it's probably easier to seek permission than forgiveness.

Answer 6

Something which was generally accepted at my previous $BIGCOMPANY was that it's better to get on with work ignorant of patents than to go and find ones to avoid. If a patent case goes to court, and records show that you knew about the infringed patent, then you've wilfully violated the patent protection which will have bigger penalties than unwittingly violating a patent.

Apparently in the US, there is indeed the idea of treble damages being awarded for wilful violation. Not being a lawyer I don't know if that's true in other jurisdictions; the UK for example does not have a legal basis for punitive damages.

Answer 7

When it comes to duplicating Apple UI look and feel to make an iPhone app, I prefer to think of Apple as a "big brother" protecting me from the patent trolling bullies on the playground.