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The case just got a lot more interesting :-) | 393 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Corrections here please
Authored by: jbb on Tuesday, July 09 2013 @ 06:09 PM EDT
So it is easy for PJ to find them.

---
In a time of universal deceit -- telling the truth is a revolutionary act.
-- George Orwell

[ Reply to This | # ]

Off topic here please
Authored by: jbb on Tuesday, July 09 2013 @ 06:10 PM EDT
So it is neat and tidy and all in one place.

---
In a time of universal deceit -- telling the truth is a revolutionary act.
-- George Orwell

[ Reply to This | # ]

News pick discussions here please
Authored by: jbb on Tuesday, July 09 2013 @ 06:11 PM EDT
Remember to include a link to the actual article so people can get to it after
it has scrolled off the Groklaw home page.

---
In a time of universal deceit -- telling the truth is a revolutionary act.
-- George Orwell

[ Reply to This | # ]

COMES transcriptions here please
Authored by: jbb on Tuesday, July 09 2013 @ 06:11 PM EDT
Thank you for all the hard work!

---
In a time of universal deceit -- telling the truth is a revolutionary act.
-- George Orwell

[ Reply to This | # ]

Why they get 5 billion do-overs
Authored by: jbb on Tuesday, July 09 2013 @ 06:48 PM EDT
Another reason they get 5 billion do-overs is that very few people in the patent system: legislators, lawyers, judges, examiners, etc, have a strong enough technical background to understand the context for software patents. Combine this with uneven rulings from the higher courts and you get an utter mess. The boundary between patentable and unpatentable is murker at best. It's also a little like quantum mechanics because as you scrutinize a patent, it changes just like Apple's '381 patent changed in order to survive the extra scrutiny it received as a result of Apple v. Samsung.

If the people involved in the patent process were well versed in the fields they are making (product-wise) life and death decisions in, and if the line between patentable and unpatentable was clear to all of those involved then all of these problems Judge Koh complains about would go away. It appears that mathematics is not the only field where:

You don't know what you are talking about nor whether what you are saying is true.
It is utterly crazy that people who don't understand what they are talking about have to make billion dollar decisions that affect an entire industry. As long as such under-qualified (technically, of course they are very well qualified legally) people have to make billion dollar decisions, the software industry will fund these utterly stupid and ridiculous law suits until the end of time. They would almost be negligent not to. It is usually a good bet to invest tens of millions of dollars on a crap-shoot that could gain you billions.

---
In a time of universal deceit -- telling the truth is a revolutionary act.
-- George Orwell

[ Reply to This | # ]

5 Billion Do-overs
Authored by: lnuss on Tuesday, July 09 2013 @ 06:53 PM EDT
**--- In a speech recently, she ranted about it: "What is so special about
patent law?" she fumed. "Why do you all get 5 billion do-overs?"
---**

Anyone for exaggeration?

Seems to me she could have saved herself some work if she'd agreed to Samsung's
request for delay.

---
Larry N.

[ Reply to This | # ]

Samsung Asks For New Trial on Apple's '381 Patent - New Evidence Has Been Discovered ~pj
Authored by: alanyst on Tuesday, July 09 2013 @ 07:21 PM EDT

One absurdity that becomes clear here is that the only difference between the Apple "invention" and that of the Lira prior art reference that they were trying to construe around, is what the "purpose" of the code was that achieved the edge alignment effect.

If code was dedicated specifically to achieving the effect of edge alignment, Apple's Claim 19 applies and the feature infringed; if it achieved the same result but was a side effect of code that achieved a different purpose (such as centering, a la Lira), then it does not infringe.

Is it truly an invention if the only thing that distinguishes it from the prior art is what a bit of code was intended to accomplish? Doesn't this lead to difficult problems for the court and juries, if they have to ascertain the intentions of the developers of the code in order to tell whether something infringes? And how does a patent on such an invention 'teach' anything or advance the sciences and useful arts?

The USPTO should have realized that Apple's narrowing of Claim 19 was an effective concession that its patent taught no useful invention beyond the prior art, and ought to have invalidated the entire patent on that basis.

[ Reply to This | # ]

Bet there's no apologies
Authored by: Anonymous on Tuesday, July 09 2013 @ 08:00 PM EDT

And I'll also bet that Florian muffs his reporting. Any takers?

Wayne
http://madhatter.ca

[ Reply to This | # ]

So what do you do if you are the Judge
Authored by: AH1 on Tuesday, July 09 2013 @ 08:32 PM EDT
If you are Judge Koh you have been PUSHING HARD to expedite this process to the
point that you DENY Samsung's request for delay only to find out that Apple
stood in that hearing knowing that they narrowed their patent claims to the
point where it could effect the claims regarding infringing products and you do
not mention, or provide a copy of the updated patent to either Samsung or the
Judge.

If it were me I would either
(a)Immediately grant the delay until the USPTO rules on the validity of the
patent.

or

(b)Immediately move forward with the hearing but not before declaring that the
jury finding against Samsung products infringing as the result of the 381 patent
to be moot.

[ Reply to This | # ]

Samsung Spin
Authored by: Anonymous on Tuesday, July 09 2013 @ 08:44 PM EDT
While I usually agree with PJ, in this case I believe she is jumping the gun a bit.
Wow. Why would Samsung have to find this in papers filed with the USPTO instead of from Apple just telling them?
Apple attached the PTO papers to their notice to Samsung. See Apple's snarky reply with attached USPTO papers. So Apple told Samsung about this through the USPTO papers. The trouble I see with Samsung's position is that Apple's patent is so nonsensical after the Lira patent workaround that how could they know their devices "cannot possibly infringe" the '319 patent. I believe their real argument is that the trial was based on claims construction that is no longer valid. Once Apple reworded their patent how do we know that Samsung devices infringe the revised wording? Samsung is simply being snarky in return. Each side is making grandiose claims that they are obviously in the right to sway public opinion to their side.

The patent now makes no sense. Good luck convincing a jury that you don't infringe something that is impossible to understand. If you have to assume patents are valid as a jury, yet it is impossible to figure out what it means how can you find infringement or non-infringement?

Good luck, Samsung.

[ Reply to This | # ]

A simple question from a German
Authored by: clemenstimpler on Tuesday, July 09 2013 @ 08:45 PM EDT
For those of us who do not live in a common law system, it is fairly strange
that judges in the US expect private parties in a trial to keep them appraised
of proceedings before the USPTO. After all, it's a state agency. Could the judge
have ordered the USPTO instead to inform her directly about the conclusion of
the proceedings and its consequences for claim '19 instead of expecting Samsung
to monitor the USPTO website in order to introduce the required documents? I
think I get all the stuff about your 'adversarial system' etc. to some extent.
But for me, this is fairly extreme. So could someone please explain what
hallowed principles of common law prevent the judge from just asking the USPTO:
"Hey, guys/girls, when you're done with this mess, please ping me and give
me the results." You know, just to keep things simple.

[ Reply to This | # ]

"reexamination decision trumps anything..."
Authored by: Anonymous on Tuesday, July 09 2013 @ 10:47 PM EDT
"..., a USPTO reexamination decision trumps anything that the courts might
do or even what they already did."

This seems overly broad. If the re-exam finds a patent invalid then effectively
the patent does not exist, it would be unreasonable to litigate a non-existent
patent. If, however, the USPTO re-exam were to uphold a patent, this should not
preclude a court case finding the patent invalid.

[ Reply to This | # ]

The case just got a lot more interesting :-)
Authored by: Anonymous on Wednesday, July 10 2013 @ 04:00 AM EDT
What will the good Judge do now :-)

[ Reply to This | # ]

Simple Solution
Authored by: Anonymous on Wednesday, July 10 2013 @ 04:06 AM EDT
I must admit that the US legal system is baffling at times.
But why does it not work this way?
1. Award is made of ten million for patent infringement whilst USPTO is thinking
about the patent.
2. ten million is payed to the winner by the loser
3. USPTO rules patent is invalid
4. the ten million is paid back by the "winner" to the
"loser"

[ Reply to This | # ]

Shouldn't this automatically be thrown out?
Authored by: Anonymous on Wednesday, July 10 2013 @ 04:13 AM EDT

From what I understand.

1) Apple's '381 patent was a catchall patent for rubber banding.
2) The '381 patent was invalidated because of prior art.
3) The '381 patent is now no longer the same patent that jury ruled was
infringed.
4) Under these circumstances shouldn't this be thrown out automatically?

And, how the hell does a company get a patent disqualified for prior art and
obviousness and then simply "change it" so that the prior art no
longer applies?

The new wording is not the patent that was originally approved. How do you
change it, midstream, and bypass the approval process? Wouldn't it be logical
to throw that patent out and say "OK, that one was defective, start over
again"?

I don't think it work so hot for me if I was found guilty in a court and said
"Hey, wait a minute, bring the jurors back in, I want to change my
testimony so I can get found not guilty."

[ Reply to This | # ]

Samsung has to "find this in papers" because its not actually in the papers.
Authored by: Anonymous on Wednesday, July 10 2013 @ 09:17 AM EDT
It's in Samsung's imagination.

"Wow. Why would Samsung have to find this in papers filed with the USPTO
instead of from Apple just telling them? In any case, Samsung argues newly
discovered evidence. The Lira patent is the prior art that caused the USPTO to
reject claim 19 earlier."

Claim 19 was not amended. Claim 19's scope was not narrowed.

Samsung is only alleging that the scope was narrowed.

That is why Samsung had to "find it".

[ Reply to This | # ]

Better Solution!
Authored by: Anonymous on Wednesday, July 10 2013 @ 11:46 AM EDT

The better solution is what the USPTO did recently in another patent situation:

    Use the Patent Owners definition in Court as the defining definition and strictly deny the patent on those grounds!
Period, end of story, end of games by Patent holder.

RAS

[ Reply to This | # ]

Samsungs new trial request
Authored by: maroberts on Wednesday, July 10 2013 @ 01:54 PM EDT
Didn't Lucy Koh (the Apple v Samnsung judge) make a speech about how she was
ticked off by companies requesting "do-overs" in patent trials?

I wonder how this is going to go down with her?

[ Reply to This | # ]

PJ, how much did it cost to get all those filings?
Authored by: Anonymous on Wednesday, July 10 2013 @ 01:56 PM EDT
I'm assuming it was more than a pretty penny.

[ Reply to This | # ]

This whole thing is incredibly stupid and hypocritical
Authored by: jbb on Wednesday, July 10 2013 @ 02:25 PM EDT
That a rubber-banding special effect could be patented at all is totally idiotic because it is obviously an idea, not an invention. If we had to patent such silly little things back in the 1980's then we would have been so busy patenting things that we would never have had time to get any work done.

Publicly, Apple's raison d'etre for this lawsuit has been that they invented the rubber-banding effect and everyone else is stealing it from them. The truth is that other people came up with this idea long before Apple did which should be a surprise to no one. Luckily (I guess), at least on of them went to the trouble of patenting the idea. The only one stealing here is Apple. They are trying to steal the rubber-banding idea and claim it for their own and then use our totally dysfunctional patent system to bar others from using this idea.

If patenting ideas such as rubber-banding was not stupid enough to begin with, granting a patent on using the rubber-banding idea in a particular situation is so bad it blows my mind. It is far worse than all the "... but on a computer" nonsense that is already clogging our courts. If you have grasped the idea of the rubber-banding effect, perhaps by reading the Lira patent, or perhaps by coming up with it yourself one afternoon; then how on God's green earth can using the rubber-banding idea in a very slightly different situation be non-obvious? I will avoid the temptation to launch an ad hominem attack against the patent re-examiner.

In addition to the potential of winning a billion dollar jackpot, another thing fueling these seemingly endless patent wars is the fact that the PTO has been granting patents on ideas, left, right, and sideways, under the guise of software patents. This rubber-banding nonsense is a perfect example. Apple is trying to bar everyone else from using the rubber-banding idea (at the edges of a document) regardless of the implementation details. It's like granting someone a patent on the idea of solar cells regardless of the implementation details. Then when you find out the solar cell idea was already patented, you say they were using it for pumping water but we are using it for charging batteries therefore our patent is novel and non-obvious.

Here is a clue for anyone who is concerned about our runaway and dysfunctional patent system. If someone submits a patent application for an end result (rubber-banding at the edge of a document) but does not restrict it to a particular implementation then they are patenting an idea, not a invention. It is very simple:

    end result = idea
implementation = invention
When you hand out patents for ideas instead of inventions then no one will be allowed to build a better mousetrap.

---
In a time of universal deceit -- telling the truth is a revolutionary act.
-- George Orwell

[ Reply to This | # ]

Samsung Asks For New Trial on Apple's '381 Patent - New Evidence Has Been Discovered ~pj - Updated 2Xs
Authored by: Anonymous on Wednesday, July 10 2013 @ 06:50 PM EDT
2) Yes, it was invalidated.
3) Yes, the scope of the patent has changed.

[ Reply to This | # ]

Lemme get this straight
Authored by: maroberts on Thursday, July 11 2013 @ 06:58 AM EDT
Apple has a patent on doing exactly the same thing as disclosed by Lira, but
only if the invention disclosed by Lira is used for a different purpose, which
happens to be a side effect of doing what Lira discloses.

Has the Patent Office gone totally insane?

[ Reply to This | # ]

Dear Samsung, Your Pantaloons are Combusting
Authored by: Anonymous on Friday, July 12 2013 @ 01:15 PM EDT
The snippet below is from and OCR of the document provided by PJ at the link
called update 2 above.

I believe it to be from the questioning of Apple's Expert by Apples Attorney.
It include an identification of Samsung code that the expert alleges does the
edge test that Samsung is now alleging was never mentioned as a requirement.
The discussion of claim 19 seems to begin on page 1742, which acrobat reports as
page 321 of the linked document. The snipped portion below begins on page
1748/327, near the bottom

PANTS ON FIRE Samsung!


Q AND HOW ABOUT IN THE BROWSER APPLICATION?
A THE BROWSER APPLICATION SIMILARLY WORKS THE
SAME WAY. YOU CAN DRAG IT BEYOND THE EDGE, IN THIS
Case5:11-cv-01846-LHK Document2062-1 Filed10/19/12 Page327 of 610
25
1749
CASE YOU'VE REACHED THE EDGE, AN AREA BEYOND THE
EDGE IS SHOWN, YOU RELEASE YOUR FINGER, IT BOUNCES
BACK, VERY MUCH LIKE THE GALLERY ACTUALLY.
Q CLAIM 19 DISCUSSES INSTRUCTIONS THAT MAKE THIS
FEATURE WORK. WHAT ARE INSTRUCTIONS IN THE CONTEXT
OF A SMARTPHONE OR A TABLET COMPUTER?
A INSTRUCTIONS IN THE CONTEXT OF PHONES AND
TABLET COMPUTERS THAT WE'RE DISCUSSING HERE ARE
REALLY JUST COMPUTER CODE, COMPUTER PROGRAM
INSTRUCTIONS, AND THIS IS LINES OF CODE THAT'S IN
THE COMPUTER THAT EXECUTE ON THE PROCESSOR TO MAKE
THIS FUNCTIONALITY WORK


Q HOW DO YOU KNOW THAT THESE INSTRUCTIONS ARE
PRESENT ON THE GALAXY S II, AT&T?
A AS I TESTIFIED EARLIER, I LOOKED AT THE
SAMSUNG PRODUCED CODE AND WHAT I'VE DONE IS I'VE
EXCERPTED JUST TWO SMALL PORTIONS TO ILLUSTRATE
SOME OF THE PERTINENT CODE FOR THE GALLERY AND FOR
THE BROWSER APPLICATIONS ON THE SCREEN.
IT'S NOT ON THE SCREEN YET.
MR. JACOBS: SO, YOUR HONOR, WE'D LIKE TO
DISPLAY THIS FOR YOU, FOR OPPOSING COUNSEL, AND FOR
THE JURY AS IS REPRESENTATIVE OF THE CODE OF
SAMSUNG.
THE COURT: OKAY. GO AHEAD.
Case5:11-cv-01846-LHK Document2062-1 Filed10/19/12 Page328 of 610

BY MR. JACOBS:
Q SO WE'RE LOOKING AT 27.31, SIR, AND IS IT ON
THE JURY'S SCREEN.
NO, NOT ON THE PUBLIC SCREEN.
THE COURT: TAKE THAT DOWN, PLEASE.
MR. JACOBS: IS IT ON THE JURORS'
SCREENS? NO.
THANK YOU MR. LEE.
Q SO DR. BALAKRISHNAN, CAN YOU SHOW US WHAT WE
ARE SEEING ON THIS, IN THIS SOURCE CODE?
A SURE.
Q CAN YOU TELL US WHAT WE'RE SEEING ON THE
SOURCE CODE?
A ON THE LEFT-HAND SIDE IS THE SOURCE CODE FOR
THE GALLERY APPLICATION THAT WE'VE BEEN TALKING
ABOUT. SO THIS IS A VERY SMALL SNIPPET OF THE
OVERALL CODE THAT RUNS. WHAT I'VE DONE IS
ILLUSTRATE JUST A PORTION THAT SETS UP THE
PARAMETERS FOR DETERMINING WHAT HAPPENS AT THE EDGE
OF THE DOCUMENT.
SO IT LOOKS AT THE LEFT EXTENT OR THE
RIGHT EXTENT OR THE TOP OR BOTTOM. THOSE ARE FOUR
EDGES OF THE DOCUMENT. IF IT EXCEEDS THE THRESHOLD
OF THAT EDGE, IT MOVES THE DOCUMENT BY THE
APPROPRIATE AMOUNT SO YOU CAN SEE IT.
Case5:11-cv-01846-LHK Document2062-1 Filed10/19/12 Page329 of 610



ON THE RIGHT-HAND SIDE IS THE SAME
FUNCTIONALITY, BUT WRITTEN IN A SLIGHTLY DIFFERENT
WAY FOR THE BROWSER APPLICATION, AND IN THIS CASE
IT'S COMPUTING THE AMOUNT OF BOUNCE THAT NEEDS TO
HAPPEN WHEN THE FINGER IS RELEASED AND IT DOES SOME
CALCULATIONS WITH THAT.
SO I WANT TO EMPHASIZE, THIS IS JUST THE
RELEVANT SNIPPET OF THE OVERALL CODE. THERE'S MUCH
MORE CODE THAT MAKES THIS ALL REALLY WORK IN
TOTALITY.
Q SO BASED ON YOUR REVIEW OF THE CODE AND OF THE
DEVICE, WHAT IS YOUR CONCLUSION AS TO WHETHER THE
SAMSUNG GALLERY S II, AT&T, INFRINGES CLAIM 19 OF
THE '381 PATENT?
A BASED ON MY REVIEW OF THE DEVICES AND THE
CODE, IT IS MY OPINION THAT THE SAMSUNG
GALAXY S II, AT&T, INFRINGES CLAIM 19 OF THE '381
PATENT IN ALL THREE APPLICATIONS.
Q YOU ANALYZED OTHER SAMSUNG PHONES?
A YES, I DID.
Q AND DOES YOUR OPINION EXTEND TO OTHERS OF THE
PHONES THAT YOU EXAMINED?
A YES, 20 OTHER PHONES ALSO INFRINGE THE '381
PATENT.
Q CAN WE SHOW THAT TO THE JURY ?
Case5:11-cv-01846-LHK Document2062-1 Filed10/19/12 Page330 of 610
25
1752
A SURE.

[ Reply to This | # ]

Bounce-Back? Did no one ever play Ping in 80s?
Authored by: Anonymous on Saturday, July 13 2013 @ 06:04 AM EDT
I've got a big book of the source code for games for one of the 8-bit
microcomputers of the eighties. It's BASIC, which isn't nice, but I'm betting
you all I could find any number of BASIC games, besides PING, that relied on
Bounce-Back to give some semblance of feedback reality for the gamer.

I hereby sentence the USPTO patent application examiners and courts to a life
sentence of inputting BASIC code into CP/M emulators, for the crime of insulting
the intelligence of the average human, so they can understand just what
"bounce-back" is - and if they dispute this sentence, I'll make the
sentence heavier by requiring them to do the same in COBOL on OS/360 on a
System/360 emulator.

I don't know!!!!! A Great White Shark shows more courtesy ...

Wesley Parish

[ Reply to This | # ]

Pulling it all together
Authored by: Ian Al on Sunday, July 14 2013 @ 07:30 AM EDT
We should follow the Supreme Court's instructions to start with §101.

We know that the patented invention is an improvement to an existing machine. Apple point out that Samsung could have improved their existing machines (smartphones) without infringing on Apple's inventive concept and Samsung claimed to have revised the new components (the software) so that it no longer infringed.

As final confirmation that it is not a process or method patent, there is no post process activity. When the app. stops, all evidence of the operation of the invention ceases. The electronic document is not changed in any way. The finger swipes just leave a greasy mark on the screen. If it is a process or method of any kind, it does not produce a resulting manufacture, material or process product.

The patented invention is the improvement of an existing machine by the addition of instructions in memory which include, among other things,

  • instructions for detecting a movement of an object on or near the touch screen display
  • instructions for displaying an area beyond an edge of the electronic document and displaying a third portion of the electronic document... in response to the edge of the electronic document being reached while translating the electronic document in the first direction while the object is still detected on or near the touch-screen.

    The patent uses the ability of the persons skilled in the art to create the required instructions in memory.

    From Fonar v. GE:
    As a general rule, where software constitutes part of a best mode of carrying out an invention, description of such a best mode is satisfied by a disclosure of the functions of the software. This is because, normally, writing code for such software is within the skill of the art, not requiring undue experimentation, once its functions have been disclosed.
    In line with Fonar, only the functions of the improved machine are given in the patent. The software writer should be able to write the software once the required functions are known.

    Judge Alito, Supreme Court, Microsoft v. AT&T:
    I agree with the Court that a component of a machine, whether a shrimp deveiner or a personal computer, must be something physical. This is because the word “component,” when concerning a physical device, is most naturally read to mean a physical part of the device...

    The physical form of the Windows program on the master disk, i.e., the engravings on the CD-ROM, remained on the disk in a form unchanged by the copying process. See Brief for Petitioner 4, n. 2 (citing White, How Computers Work, at 144–145, 172–173). There is nothing in the record to suggest that any physical part of the disk became a physical part of the foreign-made computer, and such an occurrence would be contrary to the general workings of computers.

    Because no physical object originating in the United States was combined with these computers, there was no violation of §271(f). *
    *
    *
    Because the physical incarnation of code on the Win- dows CD-ROM supplied from the United States is not a “component” of an infringing device under §271(f), it logically follows that a copy of such a CD-ROM also is not a component.
    The patent claims 'one or more programs, wherein the one or more programs are stored in the memory and configured to be executed by the one or more processors, the programs including [instructions in memory]'. As was explained by the Supreme Court judge, above, the instructions put in memory are not combinable components of an improved machine. Anyone putting the instructions in a computer is not adding combinable components to the computer. Neither are existing components changed by the adding of instructions. If the existing machine has not been improved with added combinable components and the existing components have not been materially changed, then the existing machine has not been improved in a manner that satisfies §101.

    Even if this were not so, the claims are for 'instructions for detecting a movement of an object on or near the touch screen display'. The touchscreen display detects the presence of one or more touches or the close proximity of a finger. The data about this is copied to the memory of the smartphone. The touchscreen display does not detect movement. Neither can the processor instructions. The processor instructions can only manipulate symbols representing the data passed to it from the touchscreen. Since the whole of claim 19 claims functions ties to the detection of movement by computer instructions, it claims the impossible.

    In addition, the electronic documents do not contain edges. The software generates the illusion of edges and areas beyond edges. The software is programmed to generate the appearance of edges and moving documents. The instructions in memory cannot display
    a third portion of the electronic document...in response to the edge of the electronic document being reached while translating the electronic document in the first direction while the object is still detected on or near the touch
    because the instructions cannot 'reach' the edge of the electronic document. The software is written to give the illusion of a document with edges that moves. The instructions just display whatever the source code tells it to display. The instructions cannot 'reach' anything. Again, it claims the impossible. The person skilled in the software arts just assumes that they are to create the illusion of document movement caused by finger swipes and the edge of documents being reached. Claims are not permitted to use anything but exact terms (see the § 112 quote, below).

    The claims of the patent are impossible claims. The claims cannot be met by the use of computer instructions in a memory.

    Even if this were not so, we know that it is the functions of the invention that must contain the patented inventive concept because the means was left to those skilled in the software arts. Without an inventive concept, a patent cannot be awarded (see the quotation from Flook, below).

    The creation of the illusion of moving text or images on a screen was invented by the Victorians. The slide projector created illusions of animation and movement that went way beyond the simple functions described in this patent. The movement was, in part, achieved by a finger gesture. They could easily have added bounce-back by inserting a sprung slide stop. They did not, because it was not useful. Even if the instructions of the patent claims were combinable components which resulted in the bounce-back function it serves no useful purpose. As Apple points out, Samsung could have written software that served the same purpose equally well without the bounce-back. It is there only for visual effect, for appearance sake, for cosmetic rather than useful reasons. This fails the 'useful' requirement of §101.

    Even if this were not so, the invention would have been obvious to the Victorians. Thus, it also fails later sections of the statute.

    However, perhaps this physical phenomena of bounce back qualifies when narrowed to the technology of a smartphone with a multi-touch screen. From Bilski v. Kappos:
    Flook stands for the proposition that the prohibition against patenting abstract ideas “cannot be circumvented by attempting to limit the use of the formula to a particular technological environment” or adding “insignificant postsolution activity.” (Diehr).
    Although they narrow the application of the invention to a multi-touch smartphone, the invention is about the illusion of moving electronic documents under finger control. The functions given in the specification and claims are all related to the illusion. Illusions, by definition, are not tied to machines even if machines can be used to create the illusion. Illusions are abstract ideas and Flook explains that these are unpatentable even if limited 'to a particular technological environment'.

    Even if this was not so, the claims are not process, machine, manufacture, or composition of matter claims and are not statutory matter under §101. Although Apple claim it is a machine invention infringed by Samsung's machines, it is actually an invention of an illusion.

    Can illusions be patented? Yes they can! Most magic trick illusion patents are of apparatus or props (aka, machines). There is a method patent for the illusion of threading a solid loop on to a chain (a method or process patent). From Parker v. Flook:
    "`A principle, in the abstract, is a fundamental truth; an original cause; a motive; these cannot be patented, as no one can claim in either of them an exclusive right.' Le Roy v. Tatham, 14 How. 156, 175. Phenomena of nature, though just discovered, mental processes, and abstract intellectual concepts are not patentable, as they are the basic tools of scientific and technological work." 409 U.S., at 67 .
    Apple attempt to patent the abstract intellectual concept of giving the user of a machine the illusion of documents that can be moved with the touch of a finger. Both Apple and Samsung have created the illusion using multi-touch displays and computer software. Apple make no attempt to claim the means by which this abstract illusion is created because anyone skilled in the software arts, especially smartphone apps, can create the illusion. Apple attempt to patent the illusion, itself. This is not permitted by §101 and the judicial exclusions.

    Even if this were not so, the patent fails under § 112 - Specification:
    (a) In General.— The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor or joint inventor of carrying out the invention.
    The terms in the patent claims are not 'full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same' because they claim instructions in memory carrying out impossible functions and elements of electronic documents that do not exist. Just because people skilled in the software arts can guess that Apple are referring to the creation of an illusion in the mind of a computer user rather than the actual working of the processor, that does not excuse them from the legal requirements of § 112.

    The reason why they are still talking in court is because the expert witness is an expert in the writing of computer software. He knows that the software in a computer not actually controlling an external machine is always creating an illusion for the computer user. That is true even if that illusion informs and delights the user in a real way as with the display of Groklaw electronic documents.

    The software expert is not aware of the law (esp. § 112) and the rest of the court is not aware of the facts about the technology and what it can or cannot do.

    Please excuse me: I need to move this document down the screen by rotating the scroll wheel on my mouse until the instructions in memory detect the top edge of the document and bring it to a halt.

    ---
    Regards
    Ian Al
    Software Patents: It's the disclosed functions in the patent, stupid!

    [ Reply to This | # ]

  • Update 4
    Authored by: dio gratia on Tuesday, July 16 2013 @ 12:32 PM EDT
    Thanks very much for following the trail of the reexamination proceedings
    through update 4.

    [ Reply to This | # ]

    • Update 4 - Authored by: PJ on Tuesday, July 16 2013 @ 08:22 PM EDT
    What mystery?
    Authored by: Anonymous on Tuesday, July 16 2013 @ 01:53 PM EDT
    "Mystery solved. What a snake move this is. Anyone recall Apple saying any
    of these limitations at trial when describing Samsung's alleged infringement? If
    so, cite page and line number of the transcript. Because I remember nothing
    quite like this."

    Yes, Apple says these limitations in the questions and answers of their expert
    included in Update 2.

    The discussion of claim 19 seems to begin on page 1742, which acrobat reports as
    page 321 of the linked document. Its a quick read, I suggest you start there.
    The discussion of the require instructions and an assertion that they were found
    in Samsung products begins on page 1748/327, near the bottom.

    [ Reply to This | # ]

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