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Apple's Pinch to Zoom Patent Preliminarily Invalidated by USPTO ~pj
Wednesday, December 19 2012 @ 06:02 PM EST

Samsung has filed with the court a copy of the recent decision by the USPTO that Apple's '915 patent, the pinch to zoom patent used against Samsung, is invalidated, all its claims, 1-21, in a preliminary ruling:
2202 - Filed & Entered: 12/19/2012
STATEMENT OF RECENT DECISION pursuant to Civil Local Rule 7-3.d filed bySamsung Electronics America, Inc., Samsung Electronics Co. Ltd., Samsung Telecommunications America, LLC. (Attachments: # (1) Exhibit A)(Maroulis, Victoria) (Filed on 12/19/2012)
The goofball jury, of course, thought it was a simply wonderful patent infringed every which way by Samsung. Willfully, no less. A wonderful patent worth brazillions of gold pieces that Samsung should pay Apple for infringing their Most Holy Patent.

Most Holy *Invalid* Patent, I should say.

Exhibit A is the actual notice from the USPTO, showing the reasons for the invalidity finding, prior art, which Samsung summarizes in its statement like this:

Pursuant to Local Rule 7-3(d), Defendants Samsung Electronics Co., Ltd., Samsung Electronics America, Inc., and Samsung Telecommunications America, LLC (collectively “Samsung”) bring to the Court’s attention an Office Action by the United States Patent and Trademark Office (“USPTO”) in the ex parte reexamination of U.S. Patent Number 7,844,915 dated December 19, 2012. This Office Action is relevant to Samsung's Motion for Judgment as a Matter of Law, New Trial and/or Remittitur (Dkt No. 1990) and Samsung's Opposition to Apple’s Motion for a Permanent Injunction and Damages Enhancement (Dkt No. 2054) because it rejects all claims, including Claim 8, the only claim at issue at trial in this action.

The claims were rejected under 35 U.S.C. §§ 102 and 103 based on U.S. Patent No. 7,724,242 to Hillis et al. (“Hillis”), International Pub. No. WO 03/081458 to Lira (“Lira”), U.S. Patent No. 6,757,673 to Makus et al. (“Makus”), Japanese Pub. No. 2000-163031A to Nomura et al. (English translation) (“Nomura”), and Dean Harris Rubine, “The Automatic Recognition of Gestures,” CMU-CS-91-202, December 1991 (“Rubine”).

Here's the verdict [PDF] form the jury signed off on after a nonchalant few hours of deliberations, which apparently did not include spending effort on whether or not this was a valid patent.

Some screenshots of their handiwork:

Yes, this should affect damages. It should affect whether Samsung ultimately gets a new trial, in that damages were decided only as a total, product by product but not broken down patent by patent. How do they decide how to reduce the damages now? Or should we all say that the jury's work is so sacred, there's just nothing anyone can or should do now, as long as they did their "best"?

The most important part of this news isn't that the jury's work was a farce. It's that Apple can never again sue anyone over this patent if the ruling becomes final. Thank you, Samsung, for being willing to fight instead of paying them off for what now appears to be an invalid software patent.

Ironically, this very day FOSSPatents wrote this:

For the three software patents, Samsung claims to have workarounds. I analyzed them in October and subsequently reported on Apple's claim that Samsung's purported workaround for the '915 patent isn't truly a workaround but just another act of infringement.
Ah, but, m'lord, you can't infringe an invalid patent. You forgot that detail. And so did Apple. So, here's a question. Does Samsung get any of its money back? I mean the money it spent and is spending to invalidate this stupid patent? The money it spent on trial over this stupid patent? The money it spent finding the prior art that Apple should have found before filing for this stupid patent?

No. Nothing in US patent law is *that* fair. Here's what the Wall Street Journal says could happen next:

Christal Sheppard, an assistant professor at the University of Nebraska College of Law, said Apple can still appeal if the patent office decision becomes final, and potentially salvage its patent. But if it is unsuccessful, the decision could impact the damages Apple is awarded.

"There may need to be a new phase of the trial to figure out what the damages are," Ms. Sheppard said, but not the facts of whether Samsung infringed Apple's other patents as well. "The facts of whether they infringe or not have been found."

Samsung said the development supports its request for a new trial.

Why, one wonders, don't judges wait until the USPTO is finished before allowing potentially invalid patents to go to trial? At least then gross miscarriages of justice would be avoided. Santa Clara Law professor Brian Love says the judge could, indeed, order a new trial at least on the damages:
But if things are too complicated, and require more than some simple adjustments, Koh could order a separate trial to hash out some of the damages says Brian Love, a law professor at Santa Clara University who's followed the trial closely.

"You could imagine that Judge Koh would go back and say some of this was flawed," Love said. "And instead of the judge reconstructing what the jury meant to do, we need to have the jury trial portion re-done."

And here's some good news, which is hard to come by in the patent universe. The EFF has a press release that it has been given $500,000 to fight for software patent reform and defend innovation, the donations from Mark Cuban and game developer Markus "Notch" Persson. Here's a taste:
"The current state of patents and patent litigation in this country is shameful," said Cuban, owner of the Dallas Mavericks. "Silly patent lawsuits force prices to go up while competition and innovation suffer. That's bad for consumers and bad for business. It's time to fix our broken system, and EFF can help. So that's why part of my donation funds a new title for EFF Staff Attorney Julie Samuels: 'The Mark Cuban Chair to Eliminate Stupid Patents'."

Cuban's $250,000 donation also funds the hire of a new attorney experienced in patent reform and high profile patent litigation: Daniel Nazer, who will join EFF in January as a Staff Attorney. The rest of EFF's seasoned intellectual property team includes Intellectual Property Director Corynne McSherry, Senior Staff Attorney Kurt Opsahl, and Staff Attorney Mitch Stoltz. The team is also assisted by EFF fellows Michael Barclay and Jason Schultz.

Perrson's separate donation of $250,000 cements EFF's ability to tackle the systemic problems with software patents. With a blend of lawyers, technologists, and activists, EFF will push for reform in the courts, through activism campaigns, and by educating the public and politicians about what is wrong with software patents and what needs to change.

"Temporary fixes aren't good enough – we need deep and meaningful reform to protect software development and keep it as free and democratic as possible," said Persson, creator of the popular videogame Minecraft. "New games and other technological tools come from improving on old things and making them better – an iterative process that the current patent environment could shut down entirely. This is a dangerous path we're on, and I'm glad to help EFF move us in the right direction."

Don't just reform software patents, please. Software and patents need to get a divorce.

  


Apple's Pinch to Zoom Patent Preliminarily Invalidated by USPTO ~pj | 222 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
which apparently did not include spending effort
Authored by: Anonymous on Wednesday, December 19 2012 @ 06:11 PM EST
which apparently did not include spending effort on whether or not this was a valid patent
Uh, the jury consists of laymen. Just because the USPTO has come to the conclusion to invalidate, this does not mean that the jury would have had to come to the same conclusion.

I don't see that the USPTO decision does in any way imply shoddy work by the jury: we really get no new information about the jury work that we had not had before.

The real importance is that the judge can't really ignore this. Not because of what it tells him about the jury's work, but because it obviates the jury's work.

[ Reply to This | # ]

Apple's Pinch to Zoom Patent Invalidated by USPTO ~pj
Authored by: Anonymous on Wednesday, December 19 2012 @ 06:24 PM EST
So, as I understand it, patents for two key components of the Apple
"experience", bounce and pinch-to-zoom, have been invalidated through
this process that Apple started.

These two key components of the Apple "experience" are now free for
anyone, including Android, Microsoft, RIM, and others, to use.

Not a big success for Apple.

[ Reply to This | # ]

Corrections Thread
Authored by: artp on Wednesday, December 19 2012 @ 06:30 PM EST
"Eror" -> "Error" in Title block please

---
Userfriendly on WGA server outage:
When you're chained to an oar you don't think you should go down when the galley
sinks ?

[ Reply to This | # ]

Off Topic Thread
Authored by: artp on Wednesday, December 19 2012 @ 06:32 PM EST
No pinching!

If you post On Topic, we will make you defend rounded corners
as a novel idea which is not obvious to a skilled
practitioner of the art.

---
Userfriendly on WGA server outage:
When you're chained to an oar you don't think you should go down when the galley
sinks ?

[ Reply to This | # ]

News Picks Thread
Authored by: artp on Wednesday, December 19 2012 @ 06:34 PM EST
URL please!

---
Userfriendly on WGA server outage:
When you're chained to an oar you don't think you should go down when the galley
sinks ?

[ Reply to This | # ]

Comes Goes Here
Authored by: artp on Wednesday, December 19 2012 @ 06:35 PM EST
And the beat goes on!

"Comes v. MS" link is above.

---
Userfriendly on WGA server outage:
When you're chained to an oar you don't think you should go down when the galley
sinks ?

[ Reply to This | # ]

So what is the law in this case?
Authored by: Anonymous on Wednesday, December 19 2012 @ 06:51 PM EST
Would the judge have to revise the jury decision now? New
trial? Are there any precedents for this?

[ Reply to This | # ]

Apple's Pinch to Zoom Patent Invalidated by USPTO ~pj
Authored by: Anonymous on Wednesday, December 19 2012 @ 06:55 PM EST
Except that Velvin Klink err I mean Hogan, reported to the press that they
presummed that since the USPTO granted the patent, the patent was valid. Despite
jury instructions that they were to make no such inference.

Mouse The Lucky Dog

[ Reply to This | # ]

Apple's Pinch to Zoom Patent Invalidated by USPTO ~pj
Authored by: Gringo_ on Wednesday, December 19 2012 @ 07:19 PM EST

PJ asks, "Yes, this should affect damages. It should affect whether Samsung ultimately gets a new trial, in that damages were decided only as a total, product by product but not broken down patent by patent. How do they decide how to reduce the damages now?"

No need for a new trial. The court needs to assume that the bulk of the jury award was for that patent, and reduce the total to one dollar for the remaining patents, since there is no other fair way to apportion it.

That would be just, since the jury obviously didn't do their job. The whole Hogan affair aside, somebody had calculated that in order to reach a decision in the 3 days the jury deliberated it would have had only 3 minutes to read each page of the jury instructions in that time, with no time left over for discussion. (or something like that, don't recall now.) Clearly it was a jury that had no respect for the Court and didn't take their role seriously.

As well, Samsung because clearly has been put through so much expense and humiliation because of a vexatious litigant - Apple, they merit some respite.

The judge needs to send a message that in her courtroom, Justice prevails.

[ Reply to This | # ]

So what's left for Hogan to crow about?
Authored by: SpaceLifeForm on Wednesday, December 19 2012 @ 07:26 PM EST
I can imagine him now, tossing and turning
at night, worrying about rounded corners.


---

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

[ Reply to This | # ]

Apple's Pinch to Zoom Patent Invalidated by USPTO ~pj
Authored by: charlie Turner on Wednesday, December 19 2012 @ 07:38 PM EST
A Christmas present for reality, for sure.

[ Reply to This | # ]

Forseeable?
Authored by: Anonymous on Wednesday, December 19 2012 @ 07:49 PM EST
I thought a huge piece of the Oracle v. Google pre-trial
build up was a demand that the damages theories had to be
per-patent (at one point, per-claim, though ISTR that got
rescinded). My recollection was that was specifically to
have the jury (and not a judge after the fact, or a new
trial on damages) to answer specifically this sort of
question on the original verdict.

So, clearly it's possible for a judge to design a trial that
considers damages to be awarded on a per-patent basis.

Why didn't Judge Koh do something similar? Clearly the
court was on notice this patent was under review. Shouldn't
this exact situation (having to re-apportion damages post-
trial) been avoidable? Is there a "standard practice" for a
case like this where damage apportionment can be forseen as
a need?

Or is it Oracle v. Google that's the unusual case management
situation? I know there were a few things about that case
that were unusual...

[ Reply to This | # ]

Doesn't Samsung still have to pay on '915?
Authored by: argee on Wednesday, December 19 2012 @ 08:21 PM EST
I mean, if *at the time of the trail and award of damages*,
patent '915 was valid, doesn't that mean that they have
to pay Apple for it? Not going forward as of the time
the USPO invalidates, but for up 'ti then?

Hypothetically, if I invent gadget Z, and sue or troll for
it, and get a bazillion bucks from some outfit ... and then
a few years later the USPTO invalidates my gadget Z patent,
do I have to give the money back?

What if I've spent it? Or gave it to Rutan for space
exploration?

What if at the last minute, before the award, I settle
out of court and license patent Z for a half bazillion,
what happens then? Do I get to keep the money?

This is sort like Alan Turing's wanting to get pardoned,
except that at the time he *did* it, it was a crime.

---
--
argee

[ Reply to This | # ]

Galaxy Ace (JX 1030)
Authored by: Anonymous on Wednesday, December 19 2012 @ 09:19 PM EST
My Galasy Ace does pinch to zoom but then I only recently aquired it and it has
a more recent version of Android. Is it true that the original model available
in the U.S. did not pinch to zoom or is this just more of the jury's funny
business?

[ Reply to This | # ]

Apple's Pinch to Zoom Patent Preliminarily Invalidated by USPTO ~pj
Authored by: Anonymous on Thursday, December 20 2012 @ 01:47 AM EST
If Samsung had settled then they would still have to pay.
Since they did not settle, and the case is still on going, I
doubt they would have to pay.

[ Reply to This | # ]

How did the patent get invalidated?
Authored by: Anonymous on Thursday, December 20 2012 @ 05:48 AM EST
How do you get the USPTO to reexamine the patent and put enough effort into it
that they realize it is, indeed, invalid? How did Samsung do it?

[ Reply to This | # ]

Early Christmas Present
Authored by: TiddlyPom on Thursday, December 20 2012 @ 07:22 AM EST
An early Christmas present as far as I am concerned. This is great news for
both the open source community and for Android users everywhere. I get the
impression that both the US patent office and the US judiciary have started to
get wise to the patent bullying tactics employed by Apple (and to a certain
extent Microsoft) - that are nothing to do with other companies benefiting from
'their' technologies.

---
Support Software Freedom - use GPL licenced software like Linux and LibreOffice
instead of proprietary software like Microsoft Windows/Office or Apple OS/X

[ Reply to This | # ]

Apple's Pinch to Zoom Patent Preliminarily Invalidated by USPTO ~pj
Authored by: Anonymous on Thursday, December 20 2012 @ 10:34 AM EST

Does Apple use more hyperbole than others in describing the importance of its patents or in castigating infringers. From what I've seen, no. We had Samsung a few days back saying in essence there's no smartphone industry, except through licensing their patents.

About juries in general and this jury in particular, we may all imagine ourselves fighting to insist that we deliberate on issues of prior art and obviousness. I point out that besides the foreman with a possible chip on his shoulder, you had eleven other people who, after giving up weeks of their lives, were quite willing to endorse his suggestion for a short cut. My conclusion is that the jury independently and unanimously decided that Samsung copied the iPhone and wanted to punish Samsung for doing so. Samsung's arguments were considered loophole lawyering. Now, again, we may imagine that we would have been different in the deliberation room, but here's the point, somebody who takes a suit to jury trial is going to be unhappy, and thus, would love to have another shot with a different jury. The Court has to be circumspect, otherwise its time becomes consumed with redos. Isn't it always understood that the jury option is risky?

The above may be the bleatings of an Apple fan. The following is offered with full impartiality. It is impolite to sarcastically attack a jury for not anticipating a USPTO preliminary assessment that its earlier assessment was completely wrong. Let's reserve our scorn for the USPTO who does and undoes without a passing acknowledgment of shareholder and court resources wasted with their "Never mind." A jury sees the thicket of legalese and technical terms of art which are carefully chosen to maximize the patent's range while obscuring where the hard work of implementation lies, the obviousness of the idea as analogous to what came before, or the idea as manifest future step. The jury is shown a patent, certified by the US government. The presumption is that the government, who is paid well for the effort, vetted it carefully. It's a naive assumption, but it's a tempting one to make for twelve people, paid a few dollars a day, who want their lives to return to normality. Sarcasm for the jury based on this after-trial event is unwarranted. Now the USPTO? Fire away at the folks who take money to grant and then de-grant claims. That there seems like good work, if you can get it.

[ Reply to This | # ]

Apple's Pinch to Zoom Patent Preliminarily Invalidated by USPTO ~pj
Authored by: rebentisch on Thursday, December 20 2012 @ 01:34 PM EST
I just don't get how you can litigate with an invalidated patent. Something must
be wrong in your legal system.

[ Reply to This | # ]

Apple's Pinch to Zoom Patent Preliminarily Invalidated by USPTO ~pj
Authored by: knarf on Thursday, December 20 2012 @ 02:36 PM EST
For a judicial instrument as powerful as patents are it is confounding to see
the sloppy approach the USPTO takes in granting them. The amount of hysteresis
in the proof burden between granting a patent and declaring it invalid is so
large as to be nearly insurmountable by a jury - even if that jury takes its
task in deciding the validity of the patent serious (unlike Hogan's crew did).

Potential patentee: I claim all rights to the action of making the room light up
on the flick of a switch.

USPTO: Granted

Patentee -> World: pay up you copycats!

Jury: We think this has been done before

Court: prove it beyond any shadow of a doubt

Jury: ehhh...

Then again, after the trial the following might happen:

World's lawyer: We believe this patent to be invalid

USPTO: OK, patent declared preliminary invalid. Patentee, have anything to say
on this?

...

The rest of the process seems to be as muddled as that which came before. Not to
mention the fact that, if the patent is declared invalid after the trial, any
payments made to the patentee are not automatically reversed. All in all patent
law resembles a giant money sink for anyone involved in product design, and a
money magnet for all those involved in the judicial process around patents. That
surely was not the intended goal?

---
[ "Omnis enim res, quae dando non deficit, dum habetur
et non datur, nondum habetur, quomodo habenda est." ]

[ Reply to This | # ]

  • What you miss - Authored by: Wol on Thursday, December 20 2012 @ 03:28 PM EST
    • What you miss - Authored by: Anonymous on Thursday, December 20 2012 @ 04:25 PM EST
    • What you miss - Authored by: knarf on Thursday, December 20 2012 @ 04:45 PM EST
Who has licensed the patent from TouchTable?
Authored by: Anonymous on Saturday, December 22 2012 @ 03:44 PM EST
Unfortunately, since the patent was invalidated by referring to another patent
which is still valid, doesn't this just open the door to another patent case,
namely TouchTable vs the world? Or, does this just mean that the long process of
invalidating the TouchTable patent starts? Or, do we hope that TouchTable sees
the wisdom of not suing anybody, and doesn't succumb to selling the rights to a
troll?

[ Reply to This | # ]

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