Chad Kirby

First, of all, a little background. I'm a lawyer. In my practice, I work with intellectual property -- trademarks, copyrights, patents, that sort of thing. For the past few months, I've also been an iPhone app developer.

My primary iPhone app, Calc Zero, is a well-reviewed re-imagining of your old multi-function scientific calculator (and much more!). A couple weeks ago, I submitted a new application for Apple to approve for sale in the App Store.

This morning, Apple rejected my new application because Apple objects to my use of a generic term to describe a major feature of my app.

(Slight aside: As of a few weeks ago, each app in the App Store has a corresponding set of keywords that helps users locate apps when they do a search. For example, Calc Zero's keywords include the term "RPN" because Calc Zero optionally supports Reverse-Polish Notation entry, and I want users who are searching for an RPN calculator to be able to find Calc Zero.)

The new app I submitted two weeks ago is a "programmer's" calculator named Calc 0x0 (see, that's a clever name because 0x0 is how you'd notate zero in hexadecimal… so the app is named Calc Zero, but in hex…). I refer to Calc 0x0 as a "programmer's" calculator because the user can enter and display numbers in Hexadecimal, Decimal, Octal, and Binary representations, and the user can perform various operations on unsigned integers of 8-, 16-, 32-, or 64-bits in size.

Calc 0x0 supports lots of operations, including integer and floating point math, as well as several operations that let the user manipulate individual bits within a number's binary bit pattern (e.g., shift, rotate, bitwise AND/NOT/OR/XOR, etc.). As wikipedia explains, in computer programming, an operation that "operates on one or two bit patterns or binary numerals at the level of their individual bits" is referred to as a "bitwise" operation. See also the PHP manual, which states, "Bitwise operators allow evaluation and manipulation of specific bits within an integer."

When I submitted Calc 0x0, I included "bitwise" as a keyword because "bitwise" is the term commonly used in computer programming to refer to operations that manipulate bit patterns. You might even go so far as to say that "bitwise" is a generic term for such operations.

(Another slight aside on the significance of "genericness": according to modern trademark doctrine, no company can prevent others from using a generic term. Imagine if Kellogg's could prevent its competitors from describing their breakfast products as "cereal." Or imagine if Coke could prevent Pepsi from calling its product "Cola." That sounds ridiculous, doesn't it? That's because it would be ridiculous. According to modern trademark law, generic terms like "cereal" and "cola" can always be used by any producer of that kind of product.)

Back to the issue at hand: Bitwise operators are a major feature of Calc 0x0 that distinguishes it from most all of the other calculators in the App Store. As a result, I want programmers to discover Calc 0x0 when they search for an app that performs bitwise operations, so I want to include the keyword "bitwise" to describe Calc 0x0. Makes sense, right?

Well, apparently, it doesn't make sense to Apple. This morning, I got an "Application Submission Feedback" message from Apple, stating as follows:

"[W]e cannot post this version of [Calc 0x0] to the App Store at this time because of inappropriate 'Keywords' used to identify your application. We will not post applications that reference other applications in their search criteria. It would be appropriate to remove: Bitwise."

So, Apple is telling me that I cannot use the keyword "bitwise" to describe Calc 0x0, despite the fact that bitwise is a generic term that describes a major feature of the app.

And here's the best part: Apple's stated rationale is that I can't "reference other applications" in my search criteria. However, I searched the App Store for "bitwise," and THERE IS NO APP NAMED BITWISE IN THE APP STORE.

Google does turn up an IM client for OSX named Bitwise, so perhaps Apple is saying that I can't "reference" any OSX application in my search criteria?

If so, Apple appears to have taken the position that the mere existence of an OSX application named "Bitwise" forbids me from using that term in my search criteria.

As a result, iPhone users who need a calculator that performs bitwise operations may not be able to find my app. That doesn't serve me very well, but it also prevents iPhone users from discovering useful apps. Apple's position is lose-lose.

In addition, Apple is not applying its keyword policy consistently (surprise surprise).

For example, Apple approved an app named "Documents To Go® (Microsoft Word editing & Desktop sync)," and Apple also approved an app named "Mariner Calc (Excel Spreadsheet for iPhone)." If those apps don't "reference" another application, then my grasp of the English language has really slipped.

Perhaps this is merely Yet Another Capricious App Rejection that doesn't really represent Apple's keyword policy.

On the other hand, perhaps Apple has essentially created a new proprietary class of intellectual property that is more powerful than even the most famous trademark (in that Apple's new IP forbids use of a generic descriptive term).

Either way, it doesn't speak well of the App Store approval process.

Chad Kirby is an attorney with Axios Law in Seattle. Opinions expressed in guest posts are those of their authors, and don't necessarily reflect the views of TechFlash or its staff.