By: H.W. Pfabe | July 02, 2016

Well, sort of.

 

Sticking with the latest news for another article, there is a lot of talk today about the new Patent which was issued to Apple, Inc. just four days ago. According to the much of the conversation surrounding it, many people think this Patent allows Apple to shut off the camera to your iPhone or other Apple product whenever they want. The main example, taken directly from the Patent, is turning off your camera on your phone when you’re at a live concert, whether you like it or not.

 

Understandably, this has raised a lot of concern as to people’s privacy, personal property, rights, and generally the idea of Apple taking control of your device, whether even against your will. Additionally, the fear is that people’s ability to take pictures or record what is going on around them may now be taken away at more crucial times, such as during protests, when interacting with law enforcement, etc.

 

Let’s discuss what the Patent ACTUALLY says, what it empowers Apple to do, view this development from an Intellectual Property point of view, and play “futurist” with some potential implications. Along the way, we’ll have a little primer on Patent Law.

 


What is Apple’s new Patent?


The United States Patent and Trademark Office (USPTO) issued Patent #9,380,225 on June 28, 2016. We will call this the ‘225 Patent (as Patent Attorneys, we usually refer to Patents by the last three digits as a shorthand). The ‘225 Patent lists three inventors, and is assigned to Apple, Inc. This means that Apple is the owner of the Patent, having all of the legal rights that go along with it.

 

A Patent concludes with one or more Claims. These Claims are what can be thought of as your Property Right (Intellectual Property, in this case).  Having a Patent is a grant from the government which allows you to EXCLUDE others from practicing what is Claimed in your Patent. Having a Patent does not actually give you the power to do anything. All it does is allow you to keep OTHERS from doing something. If you Patent a product, then no one else (in the U.S.) may manufacture or sell that product as it is described in the Claims. If you Patent a method of doing something or of making something, then no one else may do or make something in the way which you have described in your Claims.

 

For this reason, it is really the Claims which are the key component of a Patent. Anyone who substantively contributed to developing what is described in those Claims must be listed as an inventor on the Patent. However, inventors can sell their rights to a Patent to someone else. Most commonly, a company can, in their employment contract, require employees to sign over their rights in any Patents that come about from their employment to the company. This is typically done in an “assignment”, which is why Apple is the “assignee” of this Patent.

 

The ‘225 Patent concludes with 14 Claims. The first 9 are all to methods of doing something. Claims 10-14 are to a device (or system) which, essentially, can do what is described in the method of the earlier Claims. The Claims describe using an image sensor (such as a camera) to capture a first image which contains nonvisible information, THEN a second image which also contains nonvisible information, and THEN capturing a third image which is only visible content.

 

Claims 4 and 14 are the ones which have many people angry. These Claims describe using the nonvisible information that the device captures to make some feature of the device temporarily inoperable. The Patent itself provides an example: Your camera (which could be your iPhone) detects a special infrared signal. This signal tells your camera to turn off recording functions. The Patent further provides an example of infrared signals sent out at a live concert which, when you try to record the band, tell your phone not to record anything.

 

Essentially, what Apple has is a Patent on a very specific way of sending information to a camera: by using two infrared signals followed by a third visible signal, where the visible signal is recorded as an image.

 


Is this anything NEW?


The ‘225 Patent has been getting a lot of press, but is it truly anything new? The answer is “Yes,” but with a twist of “No.”

 

When a Patent Application is being examined at the USPTO, the Examiner looks for previous Patents, Applications, or other Publications (referred to as “Prior Art”). The Examiner is looking to see whether anyone has already disclosed exactly what the Application is claiming, or something similar.

 

Looking at the history of the ‘225 Patent’s examination, the Examiner considered eight previous Patents and nine Applications which were argued to include at least some elements of the Claims of the ‘225 Patent. One of the previous Patents, U.S. Patent #8,848,059 (the ‘059 Patent), is already assigned to Apple. In fact, the ‘059 Patent includes Claims to using the camera of a device to pick up an infrared signal and, based on that signal, disabling the camera’s ability to record. How can this be?

 

The first thing to understand is that Patents can have “families”. When you file an Application, you receive a filing date. If your Patent is granted, anyone who files for a Patent with the same Claims after your filing date cannot get a Patent on those Claims. However, up until your Patent is Issued, you can file a new Application based on that first one (with the most common type being a “Continuation-In-Part”). This new Application is usually identical to the first Application, except that it has a new set of Claims. This new Application gets the benefit of the first Application’s filing date. The first Application is now known as the “Parent,” and the new Application is known as its “Child.”

(It’s not quite as simple as this, though we will save the specific details and requirements for a future article)

 

The ‘225 Patent is the ‘059 Patent’s “Child.” The differences between the two are all in their Claims. Remember: The new Patent, the ‘225 Patent, is to a specific method of using three images or signals to transfer information to the camera. This can include shutting down recording. The ‘059 Patent is to a DIFFERENT method of accomplishing the same thing. As long as the Claims are different, two separate Patents can still be very similar.

 

Apple Patenting shutting down your camera is not new. They have simply now Patented a DIFFERENT way of doing it.

 


What does this Patent actually give Apple the Power to do?


As mentioned above, the ‘225 Patent gives Apple the right to exclude anyone else from doing something specific: sending information to a camera, including using that information to tell the camera to shut down recording, using a specific method. However, it does not in and of itself give Apple the right to do this either. From a Patent point of view, if someone else has an active Patent on shutting down your camera, then Apple might still infringe on that Patent if they try to use their method, even though their method is novel enough to be granted its own Patent. This is unlikely, but possible.

 

From a general legal perspective, does Apple have the right to shut down your phone’s camera?

 

Most likely, you would need to provide permission to do so. However, keep in mind that you may ALREADY have given Apple permission. The most recent iOS9.1 “Terms and Conditions” agreement is 418 pages long. If you downloaded the update or are using a device with this software then, according to the first full paragraph, you have already agreed to all of the terms and conditions! Specifically, section 5(j) allows Apple to disable any third party apps that they want to. Section 5(e) states that Apple does not guarantee that any content, such as photos or videos, will be available to you.

 


What are the Risks?


Apple’s Patent allows them to keep others from using this technology. This does not necessarily mean that Apple will, themselves, use it. Additionally, it does not even mean that the technology is already in place. However, if Apple installs software that would allow a camera to be disabled, then there are some potential concerns.

 

Some may worry about having their camera disabled by Apple or an Apple licensee without their permission. However, what about others doing the same thing? Can this be abused? What if it isn’t Apple using the infrared signal, or a concert organizer, but someone who is infringing on the civil rights of others? Imagine a corrupt government or organization acquiring the infrared code and using it to prevent anyone from recording their civil rights abuses or breaking of laws?

 

What if the code is modified to disable other functions on your phone, or to enable them without your permission? Apple may build in such modifications, or a Trojan Horse in a different app that you download might do so. Apple is fairly good with checking any apps that they permit thoroughly, but there is always a risk.

 

I think most of these concerns are somewhat unlikely, but it’s worth mentioning them, as this is what is on many people’s minds. Only time will tell if the Patented technology is ever used and, if so, if it is abused.

 


What does this mean for the Future?


Apple is most likely Patenting this new method because they see a way to benefit from it either financially, through additional customers, or both. It is very likely that Apple will attempt to license this technology to concert organizers and others who are willing to pay to prevent crowds at their events from recording content. The licensee will pay for use of the code, which will turn off recording.

 

One can probably also expect that Apple may further modify their next Terms and Conditions to expressly allow for disabling of recording devices. Additionally, and perhaps most likely, tickets to various event will include agreements to have your recording device disabled. If you take a close look at a ticket to most events today, and especially to amusement parks, the fine print already states that, by purchasing the ticket, the purchaser is agreeing to things such as indemnifying the park, no commercial photography, etc. This is a logical next step.

 

Finally, it’s worth mentioning that the ‘225 Patent includes a figure and description offering an example of a menu on a phone. This menu allows the user to select whether their phone will receive infrared data (like whether or not you turn on Bluetooth®). Movie theaters often have apps which, if used, will give you extra features or discounts on tickets in exchange for disabling your phone during the movie. It seems very likely that Apple or the concert promoters themselves would do something similar. We may well see special exclusive content which is offered to concert-goers, or discounts on future tickets, if they allow recording to be disabled while the band is on stage.

 

Whatever the future holds, certain public experiences are likely to be changed. Time will tell whether Apple’s new methods will be implemented, will be used responsibly, and whether they will provide a foothold for abuse.

Category: Patents 

Tags: Apple; Camera; News