“Everything that can be invented has been invented.” Legend has it that U.S. Patent Commissioner Charles Duell wrote that in a letter to President William McKinley in 1899.
Conventional wisdom also says that he didn’t really say it–but it in any case, it’s a good thing the U.S. Patent and Trademark Office didn’t shut down back then. Countless inventors and businesses have spent the past 120 years flooding it with filings covering bright ideas they want to protect, and there’s no sign the barrage will ever let up.
Some of these filings are for products and ideas that really do change everything. Others, however, are notable in part or in whole because of the headaches that they’ve caused for other inventors and businesses–even though the patents and trademarks in question sometimes cover things you might think were unprotectable, or already in existence. (Did you know it’s possible to trademark a color? Me neither, until my editor told me.)
Herewith, nine peculiar examples of patents and trademarks in action in the tech world. And if you want some background reading, check out this guide to patents and this one on on trademarks.
We Can’t Work It Out
In 1978, fledgling computer company Apple computer was two years old, and already facing trademark trouble over its very corporate identity. Worse, the troublemakers were a quartet of Steve Jobs’ heroes: The Beatles.
The Fab Four, who had formed Apple Corps Ltd. in 1968 to oversee their business affairs, thought that Apple Computer’s name and activities were uncomfortably similar to those of their company. So Apple Corps sued Apple Computer. It settled in 1981, then sued again in 1986 as the music capabilities of Apple’s computers became more sophisticated. That suit was settled in 1991.
Then Apple Corps sued again in 2003, as Apple entered the music business in a big way with the iTunes Music Store. In 2007, the two companies made peace once more–this time, in an apparently permanent fashion that is said to have made the surviving Beatles even more prosperous.
Of course, the only sign of a harmonious Beatle-Apple relationship most music lovers and/or computer nerds care about is still nowhere to be seen: a deal to put the lads’ albums on the iTunes Store.
Early Apple employee Jef Raskin had a favorite apple. It was the McIntosh–but since that was also the name of a manufacturer of high-end audio equipment, he bestowed the new computer he was spearheading with an intentionally misspelled code name: Macintosh. He figured that would sidestep any trademark problems.
He figured wrong: The McIntosh loudspeaker folks weren’t thrilled with the prospect of a similar-sounding computer, despite a letter Steve Jobs wrote them: “We have become very attached to the name Macintosh. Much like one’s own child, our product has developed a very definite personality.” According to Apple historian Owen Linzmayer, the computer company and the audio company struck a licensing deal in March 1983; early Mac ads include a credit for McIntosh Labs.
In 1986, Apple paid McIntosh a fee–how much remains a secret to this day–for permanent rights to the name “Macintosh.” Twenty-three years later, the computers and the fancy audio gear continue to coexist.
Next: The Might 1-Click and Droids
Two Clicks Good, One Click Bad
It sounds a little like patenting the eight-items-or-less supermarket checkout lane. But since 1999, Amazon.com has held a patent on e-commerce features that let you buy stuff with a single click.
As a result, the megamerchant’s superefficient 1-Click feature remains unique, tempting online shoppers, fattening Amazon’s bottom line, and annoying competitors. Amazon did license the 1-Click concept to Apple for the iTunes Store, but it also took archrival Barnes & Noble to court over its 1-Click-like “Express Lane” feature.
For the past decade, critics of the U.S. patent system have frequently brought up 1-Click as an example of a company gaining a legal monopoly on an obvious, preexisting idea. Back, in 2001, tech pundit Tim O’Reilly awarded a $10,000 bounty to folks who found prior use of the idea–ranging from a European patent for TV shopping to references in Cheers, Doonesbury, and Star Trek. Much–but not all–of the patent was overturned in 2007; Amazon is still doing its best to preserve it.
Color it Trademarked
Want to make insulation? If you color it pink, Owens Corning will get huffy–it’s got a trademark on the color for insulating materials.Yes, it’s possible to trademark a color, at least as it relates to a particular type of product or business. The legal precedent was set in the U.S. in a 1995 decision involving two manufacturers of drycleaning goods who squabbled over a particular shade of green-gold.
If you start a wireless phone company, you need to be careful about magenta. That’s T-Mobile’s signature color, in heavy use in its logo, its advertising, and even its stores’ decor. The Deutsche Telecom subsidiary has trademarked magenta in its native Germany and gone after other companies that have used the color there.
It doesn’t seem to have registered the trademark here in the United States, but it did go so far as to send a nastygram to Engadget in 2008 over the use of magenta in its Engadget Mobile logo.
Don’t Cross R2-D2
Let’s face it: From Glance to Intrigue to Envy to Entice, cell phone names have gotten pretty trite. Among the virtues of Verizon Wireless’s first Android phone is its fun moniker: Droid. It may be an unusual name for a phone, but Verizon had to seek permission to use it.
George Lucas’s Lucasfilm has the term locked up, thanks to trademark filings that date to 1977, the year C-3PO and R2-D2 first graced the screen in Star Wars. (Hey, there have even been droid phones before.) Lucasfilm trademarked “Droid” for use in the phone business in October 2009, shortly before Verizon’s device went on sale; read the fine print in ads for the Droid and Droid Eris and you’ll see an acknowledgement that the name is used under license from Lucas.
Seems fair enough: People have called humanesque automatons “androids” since the 18th century, but George Lucas seems to have coined “droid” in his Star Wars script a quarter-millennium later.
Over the Edge
California game publisher EDGE Games hasn’t released a new title in years. But every time any other company comes out with a game with “Edge” in the name–hoo boy! EDGE has taken or threatened legal action against EA for Mirror’s Edge, Namco for Soul Edge, New World Computing for Planet’s Edge, and Marvel over several comics with Edge in the name.
Most notoriously, the company engaged in an extended, bizarre trademark scuffle with Mobigame over its iPhone game Edge, which was eventually renamed Edgy–a name EDGE has also claimed is also too close to its trademark.
After EDGE went after another iPhone game, Killer Edge Racing, a bunch of iPhone game developers fought back in an effectively tongue-in-cheek manner: They announced plans for such games as FEDGE, Edgeliss, LEDGE Dismount, and Edgeward McEdgington. Still to be determined: EDGE’s stance on U2’s The Edge, the defunct soap opera The Edge of Night, and the city of Edgewood, Washington.
Next: Emoticons and Mighty Mouse
Since the 1980s, emoticons have been widely used on the Net to express happiness, unhappiness, slyness, shyness, contempt, and just about every other emotion that a human being can feel. Their predecessors date to the nineteenth century. But that hasn’t stopped Johnnies-come-lately from going after emoticon-related patents and catching flak for doing so.
In 2005, Cingular (now AT&T Wireless) filed for a patent that was widely interpreted as claiming exclusive rights to use emoticons on phones. Some, however, said that it proposed only to patent a special phone key dedicated to producing emoticons.
The same year, Microsoft filed to patent something it called emotiflags–basically emoticons an e-mail writer could use to indicate a message’s mood. It was granted the patent in 2009–even though Lotus Notes had long sported Mood Stamps, which are…emoticons an e-mail writer can use to indicate a message’s mood.
Related offline legal tussle: In 2006, Wal-Mart unsuccessfully tried to trademark the yellow smiley face that’s the most iconic emoticon of them all. The move showed a lot of hubris considering that Worcester, Massachusetts advertising artist Harvey Ball drew the first yellow smiley in 1963.
Hey, We Just Patented Podcasting!
In July, 2009, a media distribution and tracking company called VoloMedia–formerly known as PodBridge, and before that as AudioFeast–announced that it had been awarded a patent titled “Method for Providing Episodic Media,” in which it outlines a system for distributing audio and video programs across the Internet. Sound a little like podcasting? Well, the company sure thinks it does: It titled its release trumpeting the news “VoloMedia Awarded U.S. Patent for Podcasting.”
In a blog post, VoloMedia’s Mergesh Navar said “we would expect new entrants into the podcasting arena to have a collaborative relationship with VoloMedia, just as do many of the current players.” That sounded a little like a threat against would-be podcasters.
In a second post, Navar said that VoloMedia isn’t a company that has “neither products nor technologies, but just obtain(s) and hold(s) patents to pursue infringing behavior through litigation.” Which sounds a little less alarming–except that Navar isn’t saying that VoloMedia won’t sue. He’s just saying that the company doesn’t exist only to sue other companies.
VoloMedia may have patented podcasting, but did it invent it? Check out this 2001 blog post by RSS creator Dave Winer. It predates VoloMedia’s first filing by more than two years, and seems to describe podcasting much as we have come to know it.
When Apple released a mouse called the Mighty Mouse in 2005, it carefully gained permission from Viacom, current owner of Mighty Mouse, the animated rodent who’s been fighting crime since 1942. Viacom’s ownership of the trademark was acknowledged in Apple ads. But Apple didn’t get the blessings of Man & Machine, a small peripheral company that began selling a Mighty Mouse in 2004. In 2005, Man & Machine sued; in 2009, it was granted a trademark on the term.
(Side note: the crime-busting cartoon character fell afoul of similar trademark issues shortly after his debut: He was originally Super Mouse, until the owners of another Super Mouse complained.)
Apple solved its latest trademark problem with a new multitouch mouse with a noninfringing name: Magic Mouse. Let’s hope that Warner Bros., owner of Merlin the Magic Mouse, doesn’t notice.
I could go on–I haven’t even mentioned the man who attempted to patent the Internet in 2004–but if you have your own favorite examples of patents or trademarks gone wild that aren’t listed here, add them to the comments below.
(Former PC World editor Harry McCracken blogs at Technologizer .)