Earlier today a pending non-provisional utility patent application assigned to Apple Computer published. This application, US Patent Application 20090265214, is titled Advertisement in Operating System, and covers exactly what the title implies; namely an operating system that is capable of displaying a variety of advertisements to users. You are likely to have heard of the first listed inventor, Steven Jobs, the CEO and co-founder of Apple Computer, Inc. While it is difficult to know the purpose and strategy behind a patent application, the attorneys at Fish & Richardson in Minneapolis, Minnesota, who drafted and filed the patent application certainly did a very good job describing just about every conceivable feature and alternative that could coincide with the displaying of advertisements to users of an operating system. It almost sounds funny to call the displaying of advertisements within an operating system “a feature,” particularly given the annoying, ubiquitous and ever more intrusive nature of advertising these days. In any event, the patent application is well written, albeit it written in pre-Bilski style at least with respect to the claims. If Apple does want to pursue this all the way to a patent I suspect there will be plenty of opportunity to do so, and there will certainly be allowable claims that fall within this disclosure.
The patent application explains the basics of the invention as follows (with reference numerals removed throughout when the patent application is quoted to facilitate reading):
The operating system is configured to present one or more of the advertisements to users of the computer device. In some implementations, the operating system can disable one or more functions during the presentation of the advertisements and then enable the function(s) in response to the advertisements ending. That is, the operating system can disable some aspect of its operation to prompt the operator to pay attention to the advertisement.
Egads! Using an operating system is going to become like attending an online CLE, requiring you to pay attention enough to click to continue at the appropriate time? Even worse, in the version where the operating system disables functionality not only will you need to click to continue, but you are going to have to stop doing whatever it is that you are doing and pay attention to the advertisement! In all reality, I have a hard time believing that makers of computer devices would be able to get away with totally disabling the device and forcing active attention to the advertisement, at least not without the natives picking up pitch-forks and marching on Silicon Valley. But disabling some features, perhaps like the ability to turn the advertisement off, seem just plausible enough to make me take a deep hard breath followed by a gulping swallow.
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With respect to the version of the invention where you will not be able to turn off and otherwise escape the advertisement, and will need to actively do something to verify that you are listening and watching, the patent application explains:
In an attempt to ensure that the user is actually watching and/or listening to the advertisement content, the method can include a step for verifying user presence and giving proper credit (e.g., time for using the operating system, time for using the application program, time extension credit). In some implementations, the advertisement presentation module can prompt the user to confirm that he or she is reviewing the content (e.g., paying attention to the advertisement) being presented (e.g., the user is prompted to click a certain button, click a certain object or area on the screen, press a particular key or keys). In some implementations where the computer device is a cell phone or music player, the user may be prompted to press a certain button or keypad key in order to confirm that they are paying attention. In one implementation, the approaches for verifying user presence can be made progressively more aggressive if the user has failed a previous test. For example, after the user fails the test the first time, the subsequent tests can be made to appear more frequently or at varying times. As another example, the test(s) can be made more subtle so as to render them more difficult to perceive, such as by reducing the size of a message box on the screen, or by making an audio prompt more similar to the advertisement in which it is inserted. If the user fails the test in step the method can perform step over again; that is, the entire advertisement can be played again while the operating system maintains the function(s) in a disabled state. As another example, the user’s failure can first result in any available extension(s) being consumed (compare step), and only thereafter is an advertisement played in its entirety.
Potentially even worse than not being able to turn off the advertisement is a Big Brother operating system version that will keep track of whether you turn off the advertisement and then somehow penalize you for not watching long enough. The patent application explains:
In some implementations, a user may dismiss an advertisement presentation prior to completion, for example, by clicking on the advertisement (or on an unoccupied screen area outside the advertisement if the advertisement presentation occupies only a portion of the screen), which may prompt the processor or the log to record such an action so as to debit the user accordingly for the unfinished presentation.
As I read this my head is spinning and the walls almost feel like they are closing in on me. There is no where to escape! Perhaps this is a way to extract additional payments from individuals who will pay almost anything not to have their computing sessions interrupted by such invasive commercial forces. Wait a minute, perhaps I should file a patent application on a business method for extorting sums of money from individuals who do not want to have their computers disabled and subject themselves to needing to watch advertisements. Yeah! Now we are on to something, as I wring my hands and escalatingly chuckle the evil villain laugh – a la Vincent Price!
Did you catch the fact though that this “innovation” is not limited to computer operating systems? Yes, if you are carefully reading you have noticed that the patent application makes reference to cell phones as well as computers. There simply will be no escaping this high-tech advertising assault! Of course, this is an excellent drafting technique and illustration of what really needs to be done when you write these types of patent applications. Any time you write a patent application for software or a method tied to a computer you do not want to limit yourself to a computer, but rather you want to discuss any computerized device. To this end the patent application explains:
While the presentation of advertisements is described in examples herein with respect to a personal computer, it should be apparent that the disclosed implementations can be incorporated in, or integrated with, any electronic device, e.g., a device that has a visual user interface, including without limitation, portable and desktop computers, servers, electronics, media players, game devices, mobile phones, wireless devices, email devices, personal digital assistants (PDAs), embedded devices, televisions, set top boxes, etc.
I am not a fan of allowing students or junior associates to use the term “etc.” in patent applications because the term has not definable meaning in patent law. Thanks to the written description requirement what you disclose is what you are limited to, and the fact that a reader might envision other things that fit within the term “etc.” does not mean that it is included in your application. Having said that, while I don’t use “etc.” myself I use the functional equivalent in more expansive language. You never know when the Federal Circuit will change patent law, and if you want to give yourself some wiggle room to argue that stuff you never envisioned at the time of drafting is included in your application then you need something, but I digress. Returning to my astonishment… no devises are safe from Apple’s invasive advertising campaign!
But what kind of advertisements are we talking about? The patent application explains:
The advertisement may include, for example, a rectangular banner ad, an audio ad, a video clip, an image file, executable code, embedded information, or any other media, content, or interactive advertisement. For example, in the case of a text advertisement, advertisement features may include a title line (e.g., the name of a product), advertisement text (e.g., text describing the general nature of the product), and an embedded link (e.g., a URL) that links to a landing page (e.g., web site) provided by an associated advertiser. In the case of an image ad, advertisement features may include one or more images (e.g., images of a product), executable code (e.g., embedded HTML code), and an embedded link. While the advertisements are shown to reside with the advertiser’s system, the advertisements also can be stored in the advertising management system, or stored with the ad content in the computer device.
And just in case you as a user might want to watch advertisements, or re-watch advertisements, this patent application has you in mind, explaining:
The user also may manually activate an advertisement presentation. As an example, a user may select the “Watch Ads Now” menu item to instantly begin the advertisement presentation. If the user selects this menu item prior to a scheduled time of the presentation, the user may receive time extensions. The user also may select the “Watch Previous Ad” menu item to view previously watched advertisement(s). In some implementations, a user may browser a catalog of previously presented advertisements when the “Recent Ads” menu item is selected.
Who knows whether Apple has any desire to integrate such an annoying “innovation” into their operating systems. I would have to say that my guess is that Apple would not do such a thing, but their past business mistakes do not exactly inspire confidence. In fact, the fact that Apple has as much success as they do enjoy is largely in spite of themselves, and extraordinarily bad business decisions have plagued the company at times over the years. Their success at times might even be attributable to such superior technology that even bad business decisions couldn’t kill the company, or maybe best described by the saying — even a blind squirrel finds a nut every once in a while. Whatever your take is, do you really think they would alienate their users with such nonsense? I doubt it, but I suspect they think that there is some company somewhere that might just be willing to engage in such alienation in the name of advertising revenue, and if they are going to do it shouldn’t they have to pay homage to Apple with a royalty payment?- - - - - - - - - -
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About the Author
Gene Quinn is a Patent Attorney and the founder of the popular blog IPWatchdog.com, which has for three of the last four years (i.e., 2010, 2012 and 2103) been recognized as the top intellectual property blog by the American Bar Association. He is also a principal lecturer in the PLI Patent Bar Review Course. As an electrical engineer with a computer engineering focus his specialty is electronic and computer devices, Internet applications, software and business methods.