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Apple Patents Drop Down Menu After 11 Years

One of them shows an app icon on a desktop GUI. The other one a transparent drop down menu. It took the U.S. Patent and Trademark Office only 11 years to understand and process the idea of a drop down menu.

Where were you in January of 2000? I had just moved from Chicago to San Francisco (I moved four times since then). I was anticipating the birth of our first son. Today we have three children. I was patiently waiting for the release of the Playstation 2. The U.S. Patent and Trademark Office received a patent application from Apple for the design of a transparent drop down menu. It was approved on December 21, 2010.

If you skip over the header of the patent app, you may wonder who would really approve something as trivial as a transparent drop down menu in a computer user interface. However, if you consider that Apple had the idea in 2000, the scenario changes and the claim is suddenly valid. The problem here is the approval process at the USPTO which has been ridiculed in this specific case.

Gene Quinn from IPWatchdog picked up on the story and dug a bit deeper. He found that the patent was apparently just sitting around for two years when it was (non-final) rejected. Apple filed an appeal brief in 2004, when the patent sat around for four more years doing virtually nothing. In late 2007, the rejection was removed, but it took another three years until the filing was finally approved. You could think that there were some significant concerns over this patent, but the images published show something else. The difference between the original design and the final and approved design was that Apple removed some strokes indicating shading of the menu and the obvious question was whether Apple's drawing indicates transparency or not and whether that points to a three-dimensional structure or not. In Quinn's words: " There is no defending this lack of process and ridiculous delay, so I won’t. Now, however, as the design patent should be close to coming off patent, we will have to deal with this pending design patent for 14 more years."

To the defense of the USPTO, this does not seem to be the usual time frame for patent and design approvals. For example, Apple's idea to use app icons on a regular computer screen just like they are displayed on an iPhone was approved in just three years.

However, is it just me or do we face considerable problems if patents take that long to be approved. In 11 years, we have seen companies rise from nothing to stardom and fall again. 11 years ago, there was no smartphone - in the U.S., we didn't even understand the concept of texting. It was the full bloom of the dotcom era, Google was still in its infancy and we just received the first gigahertz microprocessors. Today, phones run a 1 GHz. What if a company relies on a patent to protect its existence in this cut throat economy? What relevance ahs Apples drop down patent today? Would it really sue Microsoft and thousands of other software developers over using a similar feature? Of course it won't. There is no point to it. This may be a rather silly case and it may not hurt Apple, but there may be cases that do hurt smaller companies that may not survive as the train of big IT rolls over them.   

There were calls for changing the patent approval process in the past. You hear about patents that should not be approved because they are trivial, because they violate prior art and may be plain frivolous and be filed with the single purpose of patent infringement lawsuits. The current patent approval structure has fed into an industry where ideas of innovators are tough to defend. Imagine cloud technology ideas that come up today and that need immediate protection and you have to live with the prospect that your filing lands on a desk and sits in a drawer for years doing nothing. Conceivably, there is more damage than good done every day. Is it time to change and update the way we approve patents in industries that reinvent themselves in a matter of three to five years? Absolutely.  

Receiving patents can take a long time. You may remember the cloud gaming patent Onlive received a couple weeks ago - after 8 years. In that time, Onlive's idea for cloud gaming has changed dramatically. When asked how long it can take to get a patent, Eric Teng, the inventor of the Garlic Twist said: "You have to be in good health to be in the patent process. You can get old." It is currently estimated that the USPTO has a backlog of at least 36 month in processing patents alone. It can take more than 36 months for the USPTO to make a decision on a patent. The review time frame is estimated at about 40 months. Add it all up and you end up with an average patent approval process time frame  of 60 to 100 months.   

There have been papers written about filing a successful patent application and getting your patent through the process rather quickly, but this can't be the solution to the obvious problem we have. If we can patent the way we eat spaghetti in a thousand different ways and if we can patent trivial ideas such as the order of buttons on the front of a computer case, then we do not only undermine the status of what is considered innovation, but we are creating obvious roadblocks for our society.    

Patents protect intellectual property to lay the foundation for innovation and progress. The patent system we have in place blocks innovation in too many cases and gives patent trolls too many rights.

Our patent system is broken and it needs to be fixed.