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Apple's Multi-touch Patent Found Preliminarily Invalid - Did Apple Sue Too Soon? ~pj
Friday, December 07 2012 @ 06:39 PM EST

Apple's '949 patent, "Touch screen device, method, and graphical user interface for determining commands by applying heuristics", the 7,479,949 patent, has just been preliminarily ruled invalid by the USPTO, claims 1-20. This is a pivotal patent for Apple's legal strategy, trying to carve out ownership of what it called the "Distinctive Apple User Experience" in the HTC-Apple settlement agreement.

HTC settled too soon, methinks. This is one of the patents that Apple sued them over. But they are stuck now.

Or is it Apple that sued the world of Android too soon or over invalid patents?

It has cost Android vendors millions in legal fees and costs in this stupid smartphone patent war, and that's not even counting the ridiculous jury verdict in the Apple v. Samsung litigation (it's not on the list of patents attached to the complaint or listed by number in the verdict form [PDF] in the first Apple v. Samsung case). Apple did use the patent against Samsung at the ITC, with success so far. Imagine please if the ITC bans Samsung products based on this patent and then it bites the dust? Doesn't that seem backwards to you?

So now two of Apple's patents seem to be falling down the rabbit hole. How can anyone argue that any of this is encouraging innovation? It's throwing money into the atmosphere. For what?

When the patent was granted, Jonathan Corbet wrote about the consequences of allowing such a patent:

On January 20, 2009, Apple was awarded patent #7,479,949, titled "Touch screen device, method, and graphical user interface for determining commands by applying heuristics." This patent potentially has the power to make life difficult for anybody developing hardware or software involving touch screens. It could also bring about an unwelcome repeat of some twenty-year-old history. But any attempt to enforce this patent risks repeating a twenty-year-old conclusion. ...

If Apple were to prevail with claims based on this patent, the effects could be severe - at least, in the United States. Devices made by companies other than Apple could lose a number of important techniques which make touchscreen-based interfaces usable. Companies like Palm could conceivably license the patent from Apple (if Apple were willing), but that is almost certainly not an option for toolkits (like Android) which are based on free software. Linux World Domination for mobile devices could well suffer a major setback.

Arguably, this patent would have no effect on business conducted outside of the US. Fully-capable devices could be sold elsewhere, as long as they are developed entirely outside of the United States. American users could be stuck with iPhones or devices with inferior interfaces - with the lucky few carrying devices furtively imported from elsewhere. In practice, excluding the US would make it harder for any such product to succeed. And US-based platforms, including Android and Palm webOS, would be out of luck.

That's what I mean about pivotal. And if you want to know why people now hate Apple for its legal swashbuckling, this is Exhibit A.

Preliminary means exactly that, so the impact is not immediate, only if confirmed.

The jury in Apple v Samsung, according to statements to the press later, seemed to assume validity of issued patents. Then later, the USPTO issued a preliminary invalidity finding regarding the bounce back patent, which the jury had found infringed and awarded damages for. Apple at yesterday's hearing argued for the sanctity of jury verdicts, but come on. Did this jury get *anything* right?

And now a second Apple patent is in trouble. This is the same functionality that the court in the Netherlands ruled in October that Samsung had not infringed, but then Europe and the rest of the world isn't in the clutches of the crazed US patent system. Not yet, anyway. [Update: FOSSpatents wrote to me to tell me that it's not the same functionality.]

Nor is Apple alone in trying to "own" gestures. Nokia is trying to patent them too. So hopefully this patent's fate will slow down the madness. Allowing folks to patent broad functionality like this simply blocks competition. There is no other field where patents are allowed to do that, so someone needs to notice this and do something about the software patents problem. I suggest you get right on this, before China has more patents than the US. Seriously.

Juries tend to do that, actually, assume the USPTO has already investigated and found validity, and juries tend not to think they know better than the USPTO. If you are ever on a jury, please don't make such an assumption.


  


Apple's Multi-touch Patent Found Preliminarily Invalid - Did Apple Sue Too Soon? ~pj | 134 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Apple's Multi-touch Patent Found Preliminarily Invalid - Did Apple Sue Too Soon? ~pj
Authored by: Anonymous on Friday, December 07 2012 @ 07:15 PM EST
"important techniques which make touchscreen-based interfaces usable"
so couldn't it also be labeled a FRAND patent if its pretty much needed to make
touch screens useable?

[ Reply to This | # ]

Apple's Multi-touch Patent Found Preliminarily Invalid - Did Apple Sue Too Soon? ~pj
Authored by: Anonymous on Friday, December 07 2012 @ 07:18 PM EST
"assuming the USPTO has already investigated and found validity, and juries
tend not to assume they know better. If you are ever on a jury, please don't
make such an assumption"

If go back and read cases notes from groklaw, you can see how the jury HAD
instructions on how to declare a patent invalid and even had the prior art in
front of them showing a few of apples patents were so invalid. they just choose
to ignore the prior art cause it would took to long. That is not way for a jury
to go in to a case. One juror assumed made his mind up first day.

[ Reply to This | # ]

Apple's Multi-touch Patent Found Preliminarily Invalid - Did Apple Sue Too Soon? ~pj
Authored by: Anonymous on Friday, December 07 2012 @ 08:15 PM EST
All this functionality patent abuse, really, it's ridiculous. While tech users
hope and pray that the USPTO will, at some point, finally learn to regard these
patents as they do in other industries, my fear is that the office just might
start granting the same type of patents in other sectors. I can imagine what
would happen if a company could patent the turn clockwise on-off/volume control
operation of a radio potentiometer, worse yet, the right/left sweeping action of
rubber bladed rain removal devices for a vehicle windshield. Good grief. Some
sanity puhleeese.

[ Reply to This | # ]

Apple's Multi-touch Patent Found Preliminarily Invalid - Did Apple Sue Too Soon? ~pj
Authored by: dio gratia on Friday, December 07 2012 @ 08:17 PM EST

The second of the patents in suit, the previous claim 19 of the 7,469,381 patent (See Apple "rubber band" patent invalidated by previous Apple patent). Again found invalid and not yet final by the USPTO.

[ Reply to This | # ]

What's it all for?
Authored by: Anonymous on Friday, December 07 2012 @ 08:18 PM EST
Lawyers.

[ Reply to This | # ]

How can anyone argue that any of this is encouraging innovation?
Authored by: Anonymous on Friday, December 07 2012 @ 09:22 PM EST

They can argue this quite easily. What they can't do is provide proof that
they are right.

I'm working on an article about this right now. I'll be using Groklaw as one
of my sources, of course.

Wayne
http://madhatter.ca

[ Reply to This | # ]

Corrections thread
Authored by: nsomos on Friday, December 07 2012 @ 09:36 PM EST
Please post corrections here.
A hint in the posts title may be helpful.

Thanks

[ Reply to This | # ]

Comes docs here
Authored by: SpaceLifeForm on Friday, December 07 2012 @ 10:03 PM EST


---

You are being MICROattacked, from various angles, in a SOFT manner.

[ Reply to This | # ]

OT here
Authored by: SpaceLifeForm on Friday, December 07 2012 @ 10:05 PM EST


---

You are being MICROattacked, from various angles, in a SOFT manner.

[ Reply to This | # ]

News Picks commentary here
Authored by: SpaceLifeForm on Friday, December 07 2012 @ 10:09 PM EST
Please include a link to the article you are referencing
as the article will roll off the main page.


---

You are being MICROattacked, from various angles, in a SOFT manner.

[ Reply to This | # ]

Fosspatents wrote to you? :-)
Authored by: Anonymous on Saturday, December 08 2012 @ 03:03 AM EST
You'll be exchanging Christmas cards next! :-)

[ Reply to This | # ]

"If you are ever on a jury, please don't make such an assumption. "
Authored by: Anonymous on Saturday, December 08 2012 @ 08:05 AM EST
If you're ever on a jury and come in with this prejudice, please disclose it to
the court.

You should make your informed decision based only on information provided to you
during the court process, not based on your previous groklaw-earned knowledge...
previous to the process... properly known as prejudice.

K

[ Reply to This | # ]

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