Are Maps mashups patentable?

Are Maps mashups patentable?

Summary: Someone asked me today whether they could file a patent application concerning their Google Maps mashup.  Not being a patent lawyer, I haven't the foggiest, but it's an interesting question.

TOPICS: Patents

Someone asked me today whether they could file a patent application concerning their Google Maps mashup.  Not being a patent lawyer, I haven't the foggiest, but it's an interesting question.  I don't see anything in the API Terms that would specifically preclude patenting a maps app.  (Commercial use of the API seems to be ok, though a bit of confusion about this is apparent when you search on the issue:  "The Service may be used only for services that are generally accessible to consumers without charge."  See also Jeremy Zawodny, Yahoo! Maps API, now for commercial use too.)

I assume that under the right circumstances the answer to my question is probably yes, but I'd enjoy hearing the thoughts of those more in the know.  Regardless, I can think of no better subject matter for inclusion in WikiPatents, "a public community that reviews US patents and pending patent applications. The public can add prior art references for a given patent, vote on the relevancy of both original and user-added references, and make comments about how the prior art is related to a patent. Users may also vote on various market and technical merits of patents and patent applications" — something I discussed briefly with Dan Farber in his podcast this week.

[Updated September 3, 2006 @ 8:53 am:]  The related, perhaps controlling, question is the extent to which incorporation of another's patented work (even where, as here, it's done with permission) might preclude the patentability of the new work due to issues with prior art, novelty, originality, etc.  In the comments, Dave Leigh also hits on why this question struck me as intriguing to begin with, and why I first took a look at the terms of the Google Maps API.  It seems like the ability to patent something based on an open API would be contrary to at least some of the motivations behind the API's liberal terms of use, so I wondered if this was something Google (or others providing APIs?) has tried to limit explicitly and contractually.

Topic: Patents

Denise Howell

About Denise Howell

Denise Howell is an appellate, intellectual property and technology lawyer who enjoys broad industry recognition for her expertise on the intersection of emerging technologies and law.

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  • Can vs. Should

    This illustrates one of the reasons I really despise software patents. When some entity (be it Google or an individual) publishes an API it is [i]always[/i] for the express purpose of making their tool as flexible and useful as possible. The intent is to allow your users to do new and exciting and creative things. That's [i]all[/i] of your users, not just the first one to publish their derivative work to the Web.

    To patent a specific use of that tool is always at odds with that goal of the publisher. The patent restricts the use of the API for all other users -- and it's not a restriction imposed by the API publisher. In effect, the patent-holder has usurped the rights of the publisher, because he has restricted the uses to which the publisher's own work can be put, and the ways in which the publisher can license his product. If you hold to the idea of intellectual property, then I think there is a good case to view the patent as theft.

    I would suggest a challenge such a patent on the argument that the patented use is suggested by the fact that the API is intended for, and not limited to, such uses. IOW, obviousness. "We built a tool so you could do things like this; you then did this. Duh." Should I have to have specifically suggested that particular use? No, just as if I were the inventor of modeling clay I shouldn't have to list every potential subject to prevent you from patenting the use of modeling clay to sculpt a pigeon. Even though never explicitly stated, [i]that's what it's for.[/i] Nor does the complexity of your pigeon or the amount of work you put into it have any bearing on whether you can patent this kind of use for my clay. Go to the copyright office instead, copyright your particular pigeon, and let other people sculpt their own.

    Too often, any new "intellectual territory" is treated as a Gold Rush. People rush to be first implement obvious uses of a technology and stake their claims in the patent office. Sadly, with our brain-dead and broken USPTO, it often works. However, that's not the way it's meant to be.
    • re Can vs. Should

      Excellent points, and a big part of why the API/mashup patent question was interesting to me. Though this is not quite aimed at the problems you raise, I wonder how patentable something is if it incorporates someone else's patented work (seems like you'd run into prior art issues). But hopefully some of the patent blawgers out their can enlighten us on all these fronts.
      Denise Howell
    • So who has the patent rights on map mashups?

      So who has the patent rights on map mashups? That's what I would like to know?!?!?!?!?! Please?!

      The principle behind building map mashups is pretty much the same (both in Google's and Yahoo's and Microsoft's implementations maps get displayed on your screen by using some quite simmilar world coordinates to tiles determination algorithms)... Does anyone has those algorithms patented or principles patented, can one patent them?! That's the million $ question IMHO?! Anyone patenting those would be the one who'd limit map mashup apps development drastically, plus they'd probably make a fortune...

      IOW, what I'd like to know is if one makes an application using some companies API (be it MS, Google, Yahoo or anyone else) or not even their API (but maybe just using the principles that are the same or quite simmilar to the ones that those companies used to realize their apps), can they be sued afterwards by those companies for patent infringement or something else?! Can one distibute (as freeware or payware) a non-API, but principle, using app (that uses the simmilar algorithms to the ones that the big companies use also) without having to fear if and when those big companies are gonna sue them?

      And to conclude?! Ok. It's clear (obviously) that one shouldn't patent something made on Google/Yahoo/MS/!??! Maps APIs (and in all fairness one probably couldn't - 'cause my guess is they'd be sued for something else if one can't exactly sue them just for trying to patent an app using somebody else's API, faster then you can say "Apoo Nahasapeemapetilon" :).

      Plus, not only they'd then legally be in a state of limbo, but there'd be too much of a public and that company's backlash that it juust wouldn't be wouldn't be worth it (because who'll check for and later enforce the patent use) IMHO...
      • Why should anybody?

        • Why should anybody do what?!

          I'm sorry (it might be just me seeing this?!), but the body of your contains only the string "NT"?! I don't follow?! Please explain.
          • Why should anybody have the patent rights to map mashups?

            "NT" is a convention meaning "No Text". It's synonymous with "TSIA" (Title Says It All).
          • OK

            Now, the word OK means "All right" but the way it's written comes from old England (back in the time it was a colonial superpower and fought opressing wars), I think (don't hold me by my word, English isn't my native tounge) and it meant "0 Killed".

            ;) So, actually no one has patent rights to how a map mashup is actually built (I mean the process or the principle in which a map is built out of individual tiles)... No one has that patented, not Google, nor MS, nor anyone else???
            So, an app that used such principles (not an API mind you, but just the principle of building a map mashup [what's a strict meaning of that word mashup?!?] out of individual tiles wouldn't violate anybodys patent rights!?)... Could it even be patentable, not the process but that kind of a whole app itself!? What constitutes the minimum for a software patent in USA?
            Sorry I'm draining you for answers but it's hard for me to comprehend all that legal patent mumbo jumbo, but I'd like to know some more about it... Besides, here in Europe, I think that the EU (European Union) immposed some bans on software patents (maybe they've even banned the completely?! I'm not sure?), so it's hard to find ppl to talk to that know (US) patent law...
          • Re: OK

            Here are some more plausible origins of the expression OK:

            If you want to discuss software patents, you might want to try While I have opinions, I am not a lawyer. I personally prefer the European idea that software patents should be banned (for reasons I explained earlier). I'd be very happy if the U.S. abandoned software patents entirely. I think anyone who says he really understands them is mistaken (and I'm being polite).

            If you just want to get familiar with the subject you could start with the Wikipedia article and follow the links at the bottom for additional information:
  • NO!!!

    The fact that so many high profile Patent Trolls are now losing their battles with seemingly solid patents (MercExchange vs. Ebay, NTP vs RIM/Blackberry, Forget/JPEG vs Patent Office) either in the Supreme Court itself, Patent Office or on peer review, means technology patents are on the out and NOT holding up and I predict will not hold up in the future web our kids will experience.

    I for one, dont see one single innovative or industry benefit to 99% of technology patents issues by the Patent Office these days simply because most technology patents are built on a handful of technologies most of which were created by the US Goverment (ie ARPANET - the Internet) itself or science groups in the 90's (ie CERN - the Web and HTML)!

    Why are we patenting combinations of 1's and 0's and how people use them in a digital medium??? There is no new innovation really in most of what transacts on the web other than how text and bits of data is stored,used, displayed and transacted. As technologists, we all are constantly finding ways to recombine the same scripts, code, interfaces to create new ways of using the same text and binary data. In addition, it makes almost no sense why the patent office continues this rediculous litany of unenforcable patents for the US technology business environment who do that type of work. The Patent Office are themselves now revoking their own patents in increasing numbers upon review by and other organizations! Stop the madness people and lets open source the whole darn web so we can all benefit from the innovations yet to evolve. Otherwise, a handful of large corps will be picking over the bones of the dead, gutting the talent from this industry and those small business technologists who continue to push forward with the technology.

    No wonder so many young people in the US cannot or do not want to study technology. Its now designed for people with money and and lawyers with an agenda.