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Is Apple really trying to “patent apps”? Defensive patenting explained!

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Many folks were distraught at the recent news that Apple had applied to register patents on a variety of basic app-related technologies (these applications become public 18 months after filing).  In particular, applications related to travel apps, hotel apps and shopping apps went public, seeking coverage on basic functionality like reservation modeling and promotions.

“Why would Apple do that?” asked a chorus of worried voices.  “Why would they try to kill an industry by asserting patents against everyone?”  One writer, clearly appalled, wrote that  

I really hope that U.S. Patent office will see through this Apple ruse, and quickly reject all these patent applications for mobile apps.

But is that really what’s happening here?  Is Apple trying to monopolize the space?  Probably not. 

Is it in Apple’s interest to crush the nascent app industry? That question pretty much answers itself.  Apple could not possibly create enough apps to satisfy demand.  Given the small scale of so many developers, it is even questionable whether Apple would want to create a royalty system.  A different question, however, is whether it is in Apple’s interest to build a defensive patent portfolio in the app space.  The answer to that question is a resounding “yes!”

So what does it mean to develop a “defensive” portfolio?  Don’t folks get patents solely for the purpose of suing other people and stopping competition?  Well, not exactly.  In fact, there are a variety of different reasons to get patents beyond the obvious ones:

(1) To make it clear to competitors that you have weapons to assert of your own.  For example, Nokia and Apple are currently involved in a fairly heated battlewith each other over patent rights.  Nokia sued Apple claiming that the iPhone (and later the iPad) infringed its patents.  Apple, because it had a portfolio of its own patents, was able to countersue, alleging that Nokia phones infringed Apple patents.  The best defense can often be a good offense.  Now, Apple has weapons of its own to use in the fight, and a settlement (should one be reached) will not be one sided (and might, in fact, involve cross-licensing arrangements).

(2) To mark territory for patent trolls.  Patent trolls (also known as patent holding companies) are in the business of owning patents and extracting licenses and/or suing folks.  But in order to enforce patents against companies like Apple (and Apple has been the target of many a patent troll) these trolls must have valid patents.  If you can demonstrate that these patents are neither novel nor non-obvious through the evidence of your own patent portfolio, you can stop that type of activity before the suits are even filed.

(3) To announce to the world that you were there first.  Sometimes, obtaining a patent portfolio serves no other purpose than PR — we own the rights to this space, so don’t even try to claim it.  While this has the feel of a dog claiming territory by urinating on a fire hydrant, it is not without its power.  Ownable distinction (a phrase I coined to describe this phenomena) is, in the end, the power of and reason for intellectual property.  Anything you can do to enhance the perception that you are the master of your domain will further develop the basket of associations you are creating for your customers, your competitors and the market more generally.

So do not assume that Apple is trying to push everyone else out of the market.  From their perspective, they may be trying to protect the market from predation by others who do not have the same interest as Apple in having the space thrive. 

But beyond Apple, this tale should also make you think to yourself about your own patent strategy.  Do you have one?  Maybe you should.