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Another Spanking for Apple From Judge Posner ~pj
Wednesday, July 04 2012 @ 03:17 PM EDT

Would you like to read something funny? The very intriguing Judge Richard A. Posner has issued another order [PDF], and it's another little spanking of Apple in the Apple v. Motorola patent litigation case, the one he dismissed with prejudice on June 22. If only all judges were as astute about patents!

Some are, of course. In fact, a judge in the UK just ruled that HTC doesn't infringe Apple's slide to unlock patent, as there is prior art from the Swedish phone Neonode N1. This is the same stupid patent Judge Posner mocked, I believe ("Apple’s .. argument is that 'a tap is a zero-length swipe.' That’s silly. It’s like saying that a point is a zero-length line."), and it's definitely the same one that just got Apple an injunction for now on the Nexus, BBC News reports:

Apple has previously defended its slide-to-unlock patent in other disputes against Samsung, HTC and Google's Motorola unit with some success.

Most recently a US court ruled the patent was valid in a dispute that led to a sales ban being imposed on the Google-branded Nexus smartphone.

So maybe in time, reason will prevail. But probably not initiated by Apple, as I'll show what they've been up to after the dismissal, according to Judge Posner, who was not amused. Or maybe he was. I am.

Here's the order, which arose because after the judge dismissed the case with prejudice, Apple tried a workaround, trying to salvage two of its patents from sudden death against Motorola:









No. 1:11-cv-08540 Judge Richard A. Posner.

ORDER OF JUNE 26, 2012

The case having been dismissed, I am not at all sure that I have jurisdiction to issue this order! Anyway it really isn’t an order, but merely a comment on an email.

The email is from Apple and concerns the judgment of dismissal with prejudice that I directed be entered on June 22, 2012. Much of the email is taken up with rulings that I made in the course of the litigation. On appeal from a final judgment a party can seek appellate review of any interlocutory ruling that has not been rendered moot by the final judgment. There is no occasion for specifying those rulings in the judgment itself.

Apple refers to a January 19, 2012, email in which it said it “will move”—not that it was moving—to sever its claims relating to alleged infringement by Motorola of two patents, the ‘721 and the ‘983, and to stay further action on them in this litigation, pending the Federal Circuit’s resolution of an appeal involving the same patents in a suit between Apple and HTC. Apple v. HTC, No. 2012-1025 (Fed. Cir. filed Dec. 29, 2011). (HTC, like Motorola, is a manufacturer of cell phones that use the Google-developed Android operating system.) The exact language of the January 19 email, so far as pertinent to severance and stay, is: “Apple will move pursuant to Fed. R. Civ. P. 21 to either sever its infringement claims as to U.S. Patent Nos. 5,481,721 and 6,275,983, and/or to stay resolu-

tion of those claims pending the Court of Appeals for the Federal Circuit’s resolution of a pending appeal involving the 721 and 983 patents.” Notice that the email does not commit to sever (“and/or to stay” (emphasis added)). The email itself was thus not a motion for a severance or for a stay, and I took no action in response to it. That was five months ago and until yesterday, June 25, I had not heard a further peep from Apple about these two patents. I assumed it had abandoned its claims.

Apple indicates in its email that it wants me to sever those patent claims and stay action on them. Coyly, it still has not filed a motion to sever, as required by Fed. R. Civ. P. 21. The informal suggestion in the January 19 email, never followed up, of a possible future motion to sever the two patents did not survive the entry of final judgment. Keeton v. Morningstar, Inc., 667 F.3d 877, 882–83 (7th Cir. 2012). At the hearing on June 7, I indicated my tentative decision to dismiss the entire case, yet that did not trigger a motion to sever the ‘721 and ‘983 patent claims either. That decision became final on June 22. By its inaction, which given the quality and resources of Apple’s legal team I must assume is strategic, Apple has forfeited any right to a severance.

June 26, 2012

[Signature of Richard A Posner]
United States Circuit Judge


Don't you love the word "coyly"? He misses not much, like Judge William Alsup in the Oracle v. Google litigation.

Judges are definitely beginning to notice that they are being used not to resolve real legal issues, but as a proxy for a competition struggle, and I don't think they much care for it. Judge Posner said the US patent system is "dysfunctional". When judges start to say things like that, the tide can begin to turn. It reminds me a little of Righthaven-style copyright infringement business plans that at first seemed to be working, making a list of gazillions of anonymous infringers at once and asking the courts for their names prior to identifying who actually was or wasn't infringing because it was cheaper than suing them individually, until judges began to figure out what it was all really about and shut it down hard.

Patents are trickier, and Apple isn't Righthaven, but slide to unlock? Apple wants to shut down an entire product line over slide to unlock? Are they kidding? Hopefully, somebody will show the judge who just ruled the patent viable that there is prior art.

Finally, please do watch Dan Ravicher of PubPat's video of a talk he gave at Google in April about patents, why they are such a mess, and what we can do, including helping find prior art. He explains what he has found to be the most useful way to go about finding prior art, patent mapping, which he explains at around the 49:00 mark. Those of you who regularly help in our deep dives into prior art searching at Groklaw may find it useful to add this skill to your repertoire.


Another Spanking for Apple From Judge Posner ~pj | 334 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Another Spanking for Apple From Judge Posner ~pj
Authored by: Anonymous on Wednesday, July 04 2012 @ 03:38 PM EDT
If any newspaper reports on this, the headline could read "Posner takes
another bite from the Apple" :-)

John Macdonald

[ Reply to This | # ]

Corrections Thread
Authored by: bugstomper on Wednesday, July 04 2012 @ 03:42 PM EDT
Please summarize in the Title box error->correction or s/error/correction/ to
make it easy to scan to see what errors have already been noted.

[ Reply to This | # ]

Off Topic threads
Authored by: bugstomper on Wednesday, July 04 2012 @ 03:43 PM EDT
Please stay off topic in these threads

[ Reply to This | # ]

Who are we?
Authored by: Anonymous on Wednesday, July 04 2012 @ 03:43 PM EDT
Sorry, couldn't resist. Huawei Ascend G300:
One distinctive and nifty Huawei addition is a directional lock screen. This allows you to swipe in one of four directions -- to either unlock the phone or dive straight into an app such as the camera or your messages. The default apps are camera, call log, text messages or basic unlock. Currently the apps that appear on the lock screen can't be customised but Huawei says this feature will be added when the G300 gets Ice Cream Sandwich this summer.
cnet reviews

[ Reply to This | # ]

  • Who are we? - Authored by: SLi on Wednesday, July 04 2012 @ 06:25 PM EDT
    • Who are we? - Authored by: Anonymous on Wednesday, July 04 2012 @ 08:10 PM EDT
So what was Apple trying to do with the email?
Authored by: Anonymous on Wednesday, July 04 2012 @ 03:48 PM EDT
Why did they bother?

[ Reply to This | # ]

Another Spanking for Apple From Judge Posner ~pj
Authored by: Anonymous on Wednesday, July 04 2012 @ 03:51 PM EDT
My old compaq laptop (pentium 1 days) had a mouse pad that
required one tap or two taps for the equivalent of mouse
clicks. Pentium 1 came out mid to late 90's.
Tapping a "mouse pad" is very much the same as tapping a

[ Reply to This | # ]

The benefit of NPEs doing patent trolling...
Authored by: Anonymous on Wednesday, July 04 2012 @ 04:10 PM EDT that you don't have to try to decide whether their actions are egregious enough to stop buying their products.

I am typing this on an iPad, and find it far more useful than the Android tablets I've tried. Some may disagree, that's not my point.

I vehemently oppose Apple's actions on patents, and their positions in the DMCA and in particular exemptions to the DMCA. At what point do I stop using their products and start using products that will reduce my productivity?

I have the vain hope that their abuse of the patent system will bring enough pressure to force some kind of reform.

[ Reply to This | # ]

Another Spanking for Apple From Judge Posner ~pj
Authored by: jvillain on Wednesday, July 04 2012 @ 04:23 PM EDT
If only the politicians would wake up. The real problem is that the the US makes
IP their top priority in every trade negotiation and pummels any country that
isn't willing to submit. If US IP madness gets firmly entrenched in
international law it may be impossible to ever unwind it. The US needs to fix
their mess before trying to make it the template for every one.

[ Reply to This | # ]

Posner is da man
Authored by: Henning Makholm on Wednesday, July 04 2012 @ 05:46 PM EDT
I like Posner's opinions from the Seventh Circuit pretty well -- they're among the RSS feeds I try to read all of, even though I'm neither American nor a lawyer and so shouldn't really care about the subject matter.

But here, here -- here we see that when he's writing for himself, rather than as part of an appeals panel where he's speaking for two other judges in addition to himself, by God that man is a magnificent writer.

[ Reply to This | # ]

Another Spanking for Apple From Judge Posner ~pj
Authored by: Jimbob0i0 on Wednesday, July 04 2012 @ 06:14 PM EDT
I was expecting this bit on Groklaw but we seem to have
missed it out...

Apple has an injunction against the Samsung Galaxy Tab and
Samsung Galaxy Nexus pending (in fact I think it should be
final now) due to one of their patents. The patent refers to
searching multiple databases and then 'using heuristics' to
determine the right answer to give from the sources.

This was filed ~2000 and approved ~2004 if I recall
correctly - and they claim Siri implements it.

Allegedly the search on Ice Cream Sandwich (Android 4.0)
violates this and Siri is the core selling point for the
iPhone4S.... (this is the claim made to the court not my
thoughts on it). If a consumer purchases the Galaxy nexus
for this functionality they are lost as an iPhone customer
when they obviously wanted Siri (add sarcasm here) and thus
there's irreparable damage. They had to put up a bond of
~$96million for the injunction but in the grand scheme of
things that's peanuts... it's to the point that the Galaxy
Nexus was removed from the Google Play store where it was
for sale in the US (change to 'coming soon') until this mess
is resolved - tell me that's not harming Google!

Interestingly enough there should be an OTA (over the air)
update coming to standard Galaxy Nexus users that disables
the local search on the device to avoid the patent until
Google manages to get in invalidated.... losing local search
is actually a pretty big deal too....

[ Reply to This | # ]

"slide-to-unlock patent"? Oh, puh-leez!
Authored by: Anonymous on Wednesday, July 04 2012 @ 08:09 PM EDT
Unless I misunderstand this concept, one does not have to look at ANY patents,
software or otherwise. There is ample prior art, in mechanical devices, such as
any container that has a cover that has a mechanical device that locks it
closed. Wouldn't that be sufficient prior art to obviate any such patent?
Or, maybe if there is/are such patent/s on such mechanical device/s, couldn't
the owner/s sue Apple?

[ Reply to This | # ]

Zero-Length Slide and Prior Art
Authored by: Anonymous on Wednesday, July 04 2012 @ 09:28 PM EDT
If, as Apple argues, "tap to unlock" is infringing of "slide to
unlock", then "tap to unlock" is also prior art for "slide
to unlock". My 2002 Palm Tungsten E has a "keylock" feature which
enables tapping a specified area on the screen to avoid accidental power-on.
This predates the first iPhone (2007) by a significant period. --Don

[ Reply to This | # ]

Just noticed why he did the "Tentitive notice" thing.
Authored by: Anonymous on Thursday, July 05 2012 @ 12:30 AM EDT
Did you wonder why the Judge did that "tentative notice to dismiss' thing?
I did. It made no sense to me at the time.
Now it makes sense. He was trying to flush out Apple's threatened motion to
sever. As it never came, he dismissed, and the case should be over. Now Apple
tries, and Posner slaps it down.

[ Reply to This | # ]

Another Spanking for Apple From Judge Posner ~pj
Authored by: Anonymous on Thursday, July 05 2012 @ 03:15 AM EDT
So PJ,
tell me one thing, if a patent is invalidated in UK for having prior art, cant
the same happen in US too ??

[ Reply to This | # ]

Did anyone notice the UK judge is Judge DOOM ?
Authored by: Anonymous on Thursday, July 05 2012 @ 04:34 AM EDT
His name is Christopher Lloyd ("Great Scott Marty!") who also
played Judge Doom in "Who framed Roger Rabbit".

I assume that the US actor hasn't gone into the UK judiciary,
but it made me chuckle.

Judge Doom pronounces his verdict on stupid patents?

[ Reply to This | # ]

The Patent Trollers Sonnet
Authored by: cricketjeff on Thursday, July 05 2012 @ 07:33 AM EDT
So many times this nonsense is repeated
That what is true for me's a lie for you
I played the rules but you have clearly cheated
How can you claim that I've not got a clue

My patents are all valid yours are sickly
My products are all new in all details
You better pay me lots of money quickly
I know that in all courts my view prevails

What's that you say the judge is disagreeing?
The stupid fool he must know I am right!
I personally brought life into being
And I alone spun daylight from the night

You cannot claim that I have been obtuse
In claiming gander sauce won't work with goose!

There is nothing in life that doesn't look better after a good cup of tea.

[ Reply to This | # ]

News Picks
Authored by: JamesK on Thursday, July 05 2012 @ 07:40 AM EDT

The following program contains immature subject matter. Viewer discretion is

[ Reply to This | # ]

Judge Posner (interview): It's not clear that we really need patents in most industries
Authored by: Anonymous on Thursday, July 05 2012 @ 09:41 AM EDT si ness/breaking/chi-judge-posner-us-patent-system-out-of-sync- 20120705,0,48148 25.story

Posner said some industries, like pharmaceuticals, had a better claim to intellectual property protection because of the enormous investment it takes to create a successful drug.

Advances in software and other industries cost much less, he said, and the companies benefit tremendously from being first in the market with gadgets -- a benefit they would still get if there were no software patents.

"It's not clear that we really need patents in most industries," he said. Also, devices like smartphones have thousands of component features, and they all receive legal protection. "You just have this proliferation of patents," Posner said. "It's a problem."

PJ said it before, software and patents need to get a divorce...

[ Reply to This | # ]

slide to unlock -- guide to roll over
Authored by: BJ on Thursday, July 05 2012 @ 06:12 PM EDT
Apple is anal.
What a sick lot!


[ Reply to This | # ]

Neonode user interface in 2007
Authored by: IMANAL_TOO on Friday, July 06 2012 @ 03:46 AM EDT
Neonode user interface in 2007

"You sweep along the bottom to the top"

as said at 0:21 on

Prior art.



[ Reply to This | # ]

Transparent touchpads
Authored by: IMANAL_TOO on Friday, July 06 2012 @ 01:26 PM EDT
The touchpads have had multitouch functionality years before FingerWarts (bought
by Apple in 2005) filed their patent claims in 2001

The patent seems to fulfill what
FingerWarts have done as prior art but in 1997. But even this cites older
touchpads, whether transparent or not.



[ Reply to This | # ]

Judge Posner Seems to be in a spnaking mood of late
Authored by: Anonymous on Friday, July 06 2012 @ 02:03 PM EDT
"I've become less conservative since the Republican Party started becoming goofy"

[ Reply to This | # ]

Another Spanking for Apple From Judge Posner ~pj
Authored by: Anonymous on Saturday, July 07 2012 @ 01:23 PM EDT
I haven't read their patent (and won't just because I think
Apple can suck eggs), but I have a question. In this case,
does Prior Art have to be software related or can it be

I ask that, because I've got multiple cameras (both old and
digital) that have sliders for the shutter. You have to
slide the tab over, in order to open the shutter. And since
I bought some of those cameras in 1995, I'd say it's prior.

If the patent system allows them to patent "slide to unlock"
only because it's software, then they need to show that
Android uses the exact same code as their IMNALHO (In My Not
A Lawyer Humble Opinion).

Have a great day:)

P.S. I still have an old Cannon camera (35mm) that uses

[ Reply to This | # ]

Another Spanking for Apple From Judge Posner ~pj
Authored by: Anonymous on Friday, July 13 2012 @ 06:51 AM EDT
There is a "little" patent on universal search, from 1996.
of course , the original words, like : "at least" became
"several" in the Apple patent, but hell, if simply re-wording
a text is an invention...?!!?

[ Reply to This | # ]

Another Spanking for Apple From Judge Posner ~pj
Authored by: Anonymous on Monday, July 16 2012 @ 12:44 PM EDT
Not to condone potential patent infringement, but my response is: good for Posner. The mobile patent wars are out of control. Most of these disputes belong in the marketplace, and should be resolved there, rather than wasting scarce court resources by using them as a proxy for market competition.

[ Reply to This | # ]

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