posted by Thom Holwerda on Sun 8th Nov 2009 16:11 UTC
IconWe're all familiar with the fact that Apple has trouble managing its App Store. While it is overflowing with applications, Apple governs it willy-nilly, and the web is rife with stories from developers who had their application rejected for no apparent reason. There's now a new issue we can add to the list. Are you an iPhone developer? Do you want a similar, competing application out of the App Store? All you need to do is send an infringement claim to Apple, and they'll happily threaten to remove the competing application without a second thought. Update: And here's a similar case, about Stoneloops! vs. Luxor.



Satellite dishes

This story starts with iPhone application developer John Fehr, working for Cadabra Corp. On September 23, 2009, Fehr submitted Cadabra's application "DishLoc" to the App Store. DishLoc is an application which uses augmented reality to help you in positioning your satellite dish in the most optimal way. Using the iPhone's camera and screen, it uses augmented reality to overlay the position of geostationary satellites on the screen, in real-time, making it easy for you to properly position your dish.

The application was accepted into the App Store on October 8. Version 2.0 of the application was submitted to the App Store two days later, and approved on November 3.

Fehr was obviously happy the application got in. Imagine his surprise, then, when he received an email from Apple containing a complaint from another iPhone developer, who offers a similar application. The developer in question is DP Technologies Ltd., who offers the application DishPointer, which appeared in the App Store September 22 - a day before Fehr submitted DishLoc. The complaint from DP Technologies goes like this (this is the entire complaint, submitted via a web form on iTunes Connect - I've seen the real one):

The disputed developer copied design elements and functionality from our app DishPointer AR Pro and DishPointer Maps. In particular, showing the clarke belt and satellites on the camera preview is propriatary [sic] to us for which we are filing a patent. Showing a street map and displaying alignment lines on top of that map is also propriatery [sic] to us. Please remove infringing app from store.

In the email, Apple stated that Cadabra has 5 days to remove the alleged infringing content. Fehr received the ultimatum on November 5, so if he doesn't amend the application before November 10, Apple will remove it from the App Store.


Back-and-forth

Fehr obviously disagrees with the complaint from DP Technologies. "We submitted our app through iTunes Connect a day or two before theirs was released, so we couldn't have copied design elements," Fehr explains on his blog, "Copied functionality? Really? Two apps on the app store can't have similar functionality? Tell that to all the flashlight apps, video poker apps, [insert game here] apps." It is important to note here that Fehr is wrong on the dates: DishPointer appeared on the Ap Store on the 22nd, whereas DishLoc was submitted on the 23rd. Still, it seems unlikely you can develop and submit an application like this within 24 hours. Update: Fehr pointed out that while the App Store states DishPointer arrived on September 22nd, there were problems with iTunes Connect (more here) and the servers at the time, meaning the application became visible later than the 22nd.

Fehr finds the other claims ridiculous too. "Nevermind that they spelled proprietary wrong, but are they really saying that nobody else can show satellite positions on the camera preview?" Fehr wonders, "This is a relatively simple calculation you can find in many math books and the web. The clarke belt is simply an extension, showing where the clarke belt is located." In all fairness, judging by this blog post, it does seem like Fehr added the Clarke belt display after seeing it in action in DishPointer.

The bit about "are filing a patent" is also quite vague. Is the patent pending? Do they have a patent already? If so, what is its USPTO number? I emailed DP Technologies for clarification and their side of the story. Alan from DP Technologies stated in a reply that they do not have a patent, nor have a patent pending. They are only "preparing" a patent submission - which raises the question: on what other basis than a patent can you claim that something is "proprietary to you"?

In addition, according to Alan, Apple didn't give Fehr a deadline at all. "Apple didn't give him 5 days to alter his application," Alan writes, "I've got copied into the email, it says 'please take steps to review your application to ensure that it does not violate the rights of another party'. That's all, no deadline."

I've seen the actual email Apple sent to Fehr, and it would seem Alan is incorrect: the email quite clearly states that Fehr has five days to amend his application before Apple will take measures - including removing the application from the App Store. I can't publish this email, obviously, as Fehr doesn't want to risk ire from Apple.

Alan further claims that Fehr did not come up with the idea on his own. "Please note that he did not indepentenly [sic] came to the same ideas as he posted in a discussion forum in September about "this satellite pointing apps which have no competition"," Alan details. Alan did not provide a link to this forum posting, but he's most likely talking about this one.

That forum posting was made 5 days after Fehr submitted his application, and six days after DP Technologies' application was approved and showed up in the App Store. In other words, this doesn't seem like proof Fehr copied his idea from DP Technologies. Fehr does admit he was a little upset that a similar application made it into the App Store before his did. "Admittedly, I was a bit pissed that someone had the same idea but got to the app store first," Fehr recalls.

DP Technologies did post a video on YouTube showing the augmented reality portion of DishPointer in action. This video was posted in August, so it could be that Fehr saw it in action before he started working on the application. When I asked Fehr about it, he responded pragmatically:

I know it's hard to prove not having seen a video. When I started, all I did was a quick search of the app store, and only told a few friends and my wife about it. I never even thought once about making a public announcement until I was ready to submit my app so I could limit my initial competition. I won't feel bad if you mention that it's a bit suspicious though. As I said, it's hard to prove you didn't see something.

It's indeed hard to prove anything here, but judging by the looks of the two applications, they are indeed quite different. "If I was going to copy their design and functionality from seeing that video I would have released a much different app," Fehr argues.

He further explains that the only thing he could possibly be guilty of - had he indeed heard of the competing application, which he denies - is taking an idea and implementing it. You can hardly call that illegal, unless the idea was under an NDA or something.

Fehr also contacted Apple about this, but the company is unwilling to arbitrate, and told Fehr Cadabra will have to work things out with DP Technologies. "I'm hoping before they just take our app off, they'll actually look at the facts," Fehr states.

Now, it is important to stress that this story is not about this case in particular - this case is just an example, and all I'm trying to say is this: I managed to piece all this together in a matter of hours, coming to the conclusion that DP Technologies' claim seems to hold little water. This raises the question: if I can do this relatively easily, shouldn't Apple be doing the same? Is it acceptable that Apple treats infringement complaints like this as fact without giving the accused party a means to defend itself?

Shouldn't Apple handle this matter with more grace than just threaten to remove an application from the App Store within five days whenever you send in an infringement complaint, without ever stopping to think that maybe the complaint holds no water? How many perfectly valid applications have been removed this way?


Odd situation

This is of course a very odd situation. Without having to back anything up with facts, you can apparently get Apple to remove any application you do not like from the App Store. It would appear that the App Store reviewers are too busy reviewing applications to actually care about the validity of complaints like the one Cadabra received.

However, even if the claims were valid, and Fehr had indeed copied elements from DP Technologies' application, I'd still say that would hardly qualify it for removal. I've been using my own iPhone for a few days now, and the sheer amount of completely equal applications, differentiated only by their icon, is staggering.

I also can't really blame DP Technologies for trying. I mean, this is competition, and even though it all seems a little childish to me, they are just using the system to gain a competitive advantage.

For now, all this probably means that either Fehr cripples his application beyond the point of uselessness, or have it removed from the App Store by Apple, rendering his work for naught. I'd say that this is yet another sign that Apple is incapable of handling the App Store model in a fair way. I hope Cadabra and DP Technologies can work all this out in a mutually beneficial way. A possible compromise could be that Cadabra raises the price of DishLoc to the level of DishPointer, so the applications can compete on merit. Just putting it out there.

In any case, don't let the number of applications in the App Store fool you. Popularity is not a measurement of quality - something Apple specifically should realise all too well.

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