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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.

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