— Jessica Gutierrez Alm, Attorney
Have you ever seen an ad for something and thought to yourself, “Hey, I had that idea years ago!” Some people take that thought a step further. One Florida man claims to have invented the iPhone in 1992, and is suing Apple to the tune of over $10 billion.
Thomas Ross filed a patent application for an “Electronic Reading Device” having a backlit LCD screen in 1992. Below are some images from Ross’s original filing, as presented in his Complaint against Apple.
The application was ultimately abandoned in 1995 for failure to pay required fees. Ross therefore does not hold a patent on his invention. A patent application alone, without a resulting issued patent, does not itself grant any actionable rights. Even if Apple did copy the disclosed design in Ross’s patent application, he would not have a cause of action for patent infringement based on his abandoned application.
Since Ross cannot sue for patent infringement, he instead appears to hang his case entirely on copyright infringement. In 2014, Ross registered the drawings and text from his abandoned patent application for copyright protection. Importantly, copyright protection attaches to a work when it is initially “fixed” or written. Therefore, any copyright rights that Ross holds in the drawings and text originated when he initially wrote them in 1992.
However, copyright and patent are two very different animals. Copyright protects creative works, such as literary, musical, dramatic, pictoral, graphic, and sculptural works. Copyright protection is not available for ideas, facts, or utilitarian aspects of an item. Ross’s copyright rights cannot protect the workings of an iPhone-like device itself. Copyright is not a substitute for a failure to obtain patent protection.
While Ross may have a valid copyright in the shape and other creative physical aspects of his Electronic Reading Device, an allegation of copyright infringement requires proof of actual copying. That is, a plaintiff must show that the defendant actually copied the plaintiff’s copyrighted work, which may be shown by access to the plaintiff’s work and similarity between the works. This is required because copyright law does not protect against independent creation. If two people separately create the same glass vase or write the same poem, entirely independent of one another, they may both hold a copyright for the work. Ross does not appear to provide any evidence toward proving that Apple actually copied his works.
Based on the facts presented in Ross’s Complaint, he is unlikely to succeed in the copyright allegations. The text of Ross’s 1992 patent application reveals what was likely an innovative design. He describes the device “greatly improve[ing] ready access to reading material without the traditional inconvenience of bulk associated with accessibility of large amounts of printed text, and bundled in a light, compact and easily portable device that would additionally function as a note-book (optionally), calendar, clock, timer, calculator, factsimile [sic] devices, cellular phone, [and] message handler.” Surely an innovative concept in 1992. Unfortunately, an idea itself, no matter how revolutionary, is not protectable intellectual property. Ross’s failure to obtain patent protection for his invention has led to a lack of enforceable rights.