Apple's Lawyers Target iPhone Copycats

Apple's (Nasdaq: AAPL) iPhone may be six months away from its general release, but some eager fans already have smartphones that look just like the user interface (UI) CEO Steve Jobs unveiled last week at the Macworld Conference & Expo.

At least one company, MoDaCo, has developed a screen shot of the UI that users can download and install as a "skin" on their PocketPC device. Apple, unsurprisingly, has not looked kindly upon these endeavors and is threatening legal action.

MoDaCo has displayed on its Web site a letter it received from Apple's legal team.

It reads, "While we appreciate your interest in the iPhone, the icons and screen shot displayed on your Web site are copyrighted by Apple, and copyright law explicitly prohibits unauthorized display and distribution of copyrighted works."

The letter continues, "Apple therefore demands that you remove this screen shot from your Web site and refrain from facilitating the further dissemination of Apple's copyrighted material by removing the link to http://forum.xda-developers.com, where said icons and screenshot are being distributed."

Red Cape Tactics

What MoDaCo did appears to be the equivalent of waving a bright red cape in front of an angry bull. Apple is notoriously protective of its brand and related patents and trademarks; however, its rights to the iPhone name is a matter of dispute as Cisco Systems (Nasdaq: CSCO) also claims ownership to the trademark.

In September 2006, for instance, Apple filed the word "pod" for trademark protection with the U.S. Patent and Trademark Office -- separate from its use in connection to iPod.

Apple also apparently is seeking to claim rights to the word "podcast" in certain commercial situations. Last year, the company sent a cease-and-desist letter to Podcast Ready, a company that offers downloadable podcasts along with a software application that supports many portable devices, including the iPod.

Is There Originality?

It is unclear whether Apple's position regarding the so-called "iSkins" is the correct one under patent and trademark law.

The icon for Apple's "clock" depicts a clock face and is simply not protectable, notes Tristram Fall, a partner with the corporate and the intellectual property practice groups at Fox Rothschild.

"It lacks even a minimal level of originality, something that's required for copyright protection," he told MacNewsWorld. "Other icons, such as that for 'Internet' look to be more original and, if so, could be protectable."

Fall added, "On the other hand, the skin as a whole could be protectable in theory if the selection of icons used by Apple is original in some way."

It is more than likely that the UI is patentable, Steve Rubin, an intellectual property lawyer at WolfBlock, told MacNewsWorld.

"The beauty of many of Apple's products is the user interface. I've seen media touting Steve Jobs and his UI team as making everything much more simple, easy and fun to use. As a consequence, such user interfaces can, and likely are, also protected by patent," he noted.

Patent or Copyright?

Rubin said this issue highlights one of the major differences between patent and copyright law: Copyright protection "subsists."[[

"So, if there is an original icon, Apple has copyright protection as of its creation. Apple would have to register the work in the copyright office to file suit but it's their right and can keep others from using that particular icon," he stated.

For patent protection, by contrast, Apple has to file for a patent with the Patent and Trademark Office, Rubin continued.

"In the software arts -- and a new UI would be considered software -- such an application could take five years to process because of backlog in the Patent Office," he noted. "If Apple only recently came up with the new UI, it could be years before the patent issues and they can enforce [it]. This is a major problem in industries where the technology is only hot for a few years. The whole relevant time could be spent waiting for a patent to issue."

It's highly likely that the patent application will publish before it issues, Rubin concluded.

"Once an application is published, Apple can inform its competitors of the publication but, unless the patent eventually issues in substantially the same way -- and there is no real guidance on what that language means yet -- Apple has no rights until the patent actually issue," he said.