iPhone NDA, patents, innovation


“At my company, our lawyers advised us to keep what we considered more-or-less public software under NDA for a very long time because demoing software to someone under NDA, no matter how many people it is, avoids “publishing” the software and any inventions contained therein.  We know Apple’s been building up a patent strategy around multi-touch; maybe their lawyers believe there are patentable inventions described in the iPhone SDK and they are telling Apple to keep everything under NDA until they know provisional patents can be filed within a reasonable amount of time (you get a year after publishing in the US, but in the EU, I think you forfeit any patent claims once your invention is “published”).”

continues at Daring Fireball

Multi-touch, patents, lawyers: plausible.

Also worth noting for comparison that Open Source doesn’t do product innovation. Not producing patentable inventions is not so much a matter of principle- moral high ground and all- but rather product invention is not something that comes out of the Open Source model.

Intel or ARM or another chip maker carry out R&D and produce hardware, for which the FOSS community write software. Hardware is seen as generic and commodified. Product differentiation by performance and brand is not a priority for FOSS developers.

Apple do R&D, product design and software. Their strategy is to produce innovative products. The software, operating system and interface are there so you want to buy the product. The software can be free (of charge) like iTunes; so you want to buy the product, iPod.

A software licence from Apple is not going to allow you to make changes to the software. That’s their job.

What the iPod and the iPhone produce is an innovative user experience. The outcome of a user interface design process where product design and software design work seamlessly together.

You can’t patent a user experience or a GUI. (Remember the original ‘look and feel’ lawsuit.) But if you could patent a touch screen technology which is intrinsic to a user experience, you would establish a unique product advantage. Consumers would be happy, the stock holders would be happy and once the NDA was lifted, your developers would forgive you.


An explanation can be plausible without being accurate. Whilst John Gruber’s account and my commentary may  explain why Apple are behaving in an apparently counter-productive way towards their developers, it is only conjecture.

One of the consequences of Apple’s company culture of secrecy is that commentators spend a lot of energy looking for explanations which will show a suprising and brilliant strategic move: ‘one more thing’.

An alternative explanation for the NDA restrictions is that sometimes companies, including Apple, just make mistakes.

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