Apple-Motorola Judge Questions Need for Software Patents

[BaldiMac]

First off, Apple patented something that we longtime touch developers considered obvious: adding a visual cue to slide-to-unlock. Several judges worldwide have since agreed on the obviousness.

Second, they didn't reference a lot of prior patents that they could've.

Third, they kept adding ONTO the original patent using a practice called "double patenting", where the patent applicant continues a previous patent in order to take advantage of the earlier priority date so they can sue others.

Read this patent analysis by M-CAM, which goes into details on the rejections that Apple kept trying to overcome, and how they eventually wore down the examiner.

Here's the original application.

Here's the first Patent: 7,657,849, which is still only about using a predefined path.

Here's the double dipping continuation filed in 2009: 8,046,721 which adds on less strict ways of unlocking that might be familiar to Android users.

I don't disagree with any of that. I haven't made an claim as to the validity of the patent. I just think we should discuss the actual patent claims instead of made up claims based on the title or summary

Unfortunately not. You're still manipulating an on screen element. Apple's patent doesn't limit the feature to actually moving some on-screen element. I'm wondering if you read your own link...

Maybe you are reading something different than I am. Claim 1 specifically describes moving the "unlock image" from point A to point B.

 

[kockgunner]

You can't patent all "Drugs to cure cancer" or all "designs of an apple with a bite out of it", but you can patent all implementations of "slide to unlock" or "pinch to zooms"? If I can say it in a few sentences and ONE person can write the code needed to do it in a few days, I don't think it should be patentable.

The problem seems to be a disconnect in actual patent granted and the claims used in court.

For example, Apple's slide to unlock patent is pretty specific, and it includes the text, the light flowing in the direction you need to swipe, and arrow, and some other stuff. Yet, the patent is still being used against other companies who's slide to unlock implementation is pretty different.

 

[thekev]

First off, Apple patented something that we longtime touch developers considered obvious: adding a visual cue to slide-to-unlock. Several judges worldwide have since agreed on the obviousness.

Second, they didn't reference a lot of prior patents that they could've.

Third, they kept adding ONTO the original patent using a practice called "double patenting", where the patent applicant continues a previous patent in order to take advantage of the earlier priority date so they can sue others.

Read this patent analysis by M-CAM, which goes into details on the rejections that Apple kept trying to overcome, and how they eventually wore down the examiner.

I wanted to say thanks for the link. The why didn't anyone else do it seems to come up frequently, but it's an implementation of something obvious. Allowing them to own something that broad is just beyond silly, and now they're using it to clutter the court systems worldwide.

...can I have it, please? Description:

A program that puts out on a) a prompt or b) a message box or c) any other output device the words "Hello" and "World" or any combination of them including but not limited to an exclamation mark.


Boy, if I get this, I can sue every school and university offering programming classes, not to mention printers printing programing language manuals etc.

That actually made me laugh.

The problem seems to be a disconnect in actual patent granted and the claims used in court.

For example, Apple's slide to unlock patent is pretty specific, and it includes the text, the light flowing in the direction you need to swipe, and arrow, and some other stuff. Yet, the patent is still being used against other companies who's slide to unlock implementation is pretty different.

I'm surprised more people don't realize that they're spending a lot of legal resources just seeing what they can make stick even for a short period of time. Many of these are trash claims, but if they get an injunction, X product is off the market long enough to further extend their brand presence. Some of these seem pretty ridiculous when you read the actual patent language (patently apple is frequently linked on here) and see how far the claims are extrapolated via interpretation.

 

[MadIvan]

Is it just me or is this judge straying into Judicial Activism with this kind of pontificating?

I mean the question at hand was not "Are intellectual patents a good idea in this industry or not?", but more like "Is this particular patent being infringed upon?".

If we do away with Intellectual Property Patents i think we can agree that the motivation for innovation will be greatly hindered.

There was plenty of innovation in software before software patents became commonplace. QED you are wrong.

 

[kalsta]

As a developer it sucks that others just steal your inventions, but as a consumer it also sucks that these patents pose limitations for us.

As a developer it must also suck to have a great idea that you can't implement because a much bigger company holds a bunch of disputable patents that might infringe upon it.

No one is talking about deregulating software. Software already benefits from protection through Copyright. No one can copy your software. Patents don't cover your actual software, but the ideas and methods behind it. That is what is hurting the consumer and the industry in general. Software patents shouldn't be granted, software should be protected by copyright only.

Agreed. In addition, we need judges who are capable of making common sense decisions about when something has been unfairly copied, and when a case should be thrown out of court quickly. It's always going to be a grey area unfortunately, but it does seem that software patents benefit only two groups—huge corporations with the money to rack up long lists of obscure patents, and of course, lawyers.

All actual developers agree on this, only managers and lawyers say otherwise. Guess why.

I'm all for a world with fewer lawyers!

 

[GeeEllBee]

Veggie garden

This quote of Posner's says it all: "I'm not actually that interested in becoming part of the smartphone generation."

The old man should get sacked and given a comfy retirement package so he can tend to his veggie garden (nothing wrong with veggie gardens, by the by). It is all too obvious that Posner lacks both understanding and empathy for Intellectual Property right, particularly in the context of high-tech. How was he allowed to get anywhere near this situation is beyond me. Time to appoint a younger, tech-savvy type.

 

[KanosWRX]

Glad to see at least one person in the government sees the problem with all of these companies patenting every little detail of software. Its just insane. It like patenting the wood door on a cabinet or a button on a hair dryer. 99% of these things are common grounds prior art blah blah blah. Get rid of all these worthless patents so companies can get back to innovating and competing for their customers.

 

[kalsta]

This quote of Posner's says it all: "I'm not actually that interested in becoming part of the smartphone generation."

The old man should get sacked and given a comfy retirement package so he can tend to his veggie garden (nothing wrong with veggie gardens, by the by). It is all too obvious that Posner lacks both understanding and empathy for Intellectual Property right, particularly in the context of high-tech. How was he allowed to get anywhere near this situation is beyond me. Time to appoint a younger, tech-savvy type.

Being 'younger' and 'tech-savvy' doesn't automatically equip you with something called wisdom. I fail to see how his choice as a consumer has any bearing on his ability to make sensible judgements.

 

[kockgunner]

I wanted to say thanks for the link. The why didn't anyone else do it seems to come up frequently, but it's an implementation of something obvious. Allowing them to own something that broad is just beyond silly, and now they're using it to clutter the court systems worldwide.



That actually made me laugh.



I'm surprised more people don't realize that they're spending a lot of legal resources just seeing what they can make stick even for a short period of time. Many of these are trash claims, but if they get an injunction, X product is off the market long enough to further extend their brand presence. Some of these seem pretty ridiculous when you read the actual patent language (patently apple is frequently linked on here) and see how far the claims are extrapolated via interpretation.

I don't think Apple wanted to take the Galaxy Tab 10.1 off the market because they were scared of their brand being diluted or getting their iPad profits eaten.
I think the patent wars started when SJ was still around and when Samsung products were really inspired by Apple industrial design. Right now, they're just litigating because you can't just stop randomly. I would give it some time and things will probably work out in the end.

 

[thekev]

I don't think Apple wanted to take the Galaxy Tab 10.1 off the market because they were scared of their brand being diluted or getting their iPad profits eaten.
I think the patent wars started when SJ was still around and when Samsung products were really inspired by Apple industrial design. Right now, they're just litigating because you can't just stop randomly. I would give it some time and things will probably work out in the end.

There was something mentioned regarding a meeting between Tim Cook and Samsung's CEO (can't recall his name) a while ago. I don't know whether it was substantiated or just a rumor. In either case, the litigation wars are still ongoing. Hopefully that changes soon. It seems obvious that they're just listing any device they can if there's a chance they'll win. They can keep as many off the market as possible as long as possible, but you're right, it'll fizzle out and the partners in these law firms will be sad when it ends.

 

[kdarling]

I don't think Apple wanted to take the Galaxy Tab 10.1 off the market because they were scared of their brand being diluted or getting their iPad profits eaten.

Perhaps, but that's what Apple publicly claims:

"Each day that Samsung continues to sell its infringing Tab 10.1 causes additional harm to Apple through design dilution, lost sales, lost market share, and lost future sales of tag-along products," - Apple May 2012

I think the patent wars started when SJ was still around and when Samsung products were really inspired by Apple industrial design. Right now, they're just litigating because you can't just stop randomly. I would give it some time and things will probably work out in the end.

They could withdraw their suit at any time they wish.

In fact, Judge Koh made Apple and Samsung sit down for a couple of days in May to try to work things out without a trial. The talks didn't go anywhere, obviously.

 

[the8thark]

The Judges are basically saying if someone invents a piece of software that is key to their making money, others can just go in and clone it and use it however cause they want all software patents to disappear.

These Judges just don't get it. It's a sad sad day when the legal system allows one party to steal and profit off the hard work of another party.

 

[blow45]

He needs to read: Are software patents evil?
http://www.roughlydrafted.com/2011/08/09/are-software-patents-evil/

Yeah Judge Posner really needs to read some apple nutter like dan dilger, aka kasper, aka whatever of the 500+ handles he uses at ai.

----------

They are killing progression in most software markets. The worst part is most people don't even know a patent exists until after they spend millions on development only to have it blocked in the end.

I can understand broad software ideas, but to put a patent on a sliding button, multi-touch etc.. is just too far reaching and only large companies can afford the patent attorneys.


They are not used for good in the software industry they are only used to harm.

I think there's another issue here too, the money they spend on lawyers. I would wager apple's legal team is getting more money than the os x team (whatever little of it is left and isn't on ios that is).

Apple nowadays seems like a law firm with a pretty large it department.

They didn't have enough resources to redesign and/or upgrade the mac pro to usb3, thunderbolt and current cpus (which are anyway manufactured by others) but they sure have enough resources to be involved in oh about 100 different legal cases at the same time...

 

[blow45]

This quote of Posner's says it all: "I'm not actually that interested in becoming part of the smartphone generation."

The old man should get sacked and given a comfy retirement package so he can tend to his veggie garden (nothing wrong with veggie gardens, by the by). It is all too obvious that Posner lacks both understanding and empathy for Intellectual Property right, particularly in the context of high-tech. How was he allowed to get anywhere near this situation is beyond me. Time to appoint a younger, tech-savvy type.

yeah it's probably time to appoint some younger facebook, porn, twitter addicted maniac with the attention span of a gold fish 0who's commenting on a blog, checking mail and weather (look at the window man), twitting...a ll from his iphone whilst commuting in a bus, sitting next to a pretty girl who he can't even look at...

Hmmm, you know what, I 'll take Judge Posner, and I ll send the other guy for some intensive gardening therapy.

 

[buddgeez]

Patents should be for things that was innovated by a company. Not things like hyperlink in a text message. Whoever is giving apple these silly patents shoukd be fired immediately. Not just apple though, all company with stupid patents on things they didn't innovate.

 

[RobertMartens]

Is it just me or is this judge straying into Judicial Activism with this kind of pontificating?

I mean the question at hand was not "Are intellectual patents a good idea in this industry or not?", but more like "Is this particular patent being infringed upon?".

If we do away with Intellectual Property Patents i think we can agree that the motivation for innovation will be greatly hindered.

Yes exactly, people will stop thinking up stuff. And there will be no more music.

Anyway you're right, Congressional activism is much better. Like when they thought up ACA.

 

[Dbrown]

So if I developed the game Pac-Man and spent money marketing it until it was popular, then you make a copy of the game but didn't use my source code, pray tell how I am protected? The consumer gets a cheaper version of the game from you because you didn't have the development costs that I did.

How am I protected?

Without protection, I'd just say ****** it and leave the game business, then no more innovation from me and you can keep spinning off iterations of your mediocre games and then the industry languishes and the consumers suffer.

What an uniformed post, lol. There's always been copycats throughout the history of gaming, and every year the industry gets bigger. The most popular ios game of all time - angry birds - is a copy of crush the castle.

 

[Ravager]

My point was that software patents can be about other things than the actual code implemented. And reverse engineering is not legal in all circumstances, reverse-engineering digital copyright protection code is illegal.

Actually, dependant on the media, it is legal. Visually impaired people can reverse and break drm on things with a handful of special circumstances thanks to the U.S. supreme court.

 

[JohnDoe98]

My point was that software patents can be about other things than the actual code implemented. And reverse engineering is not legal in all circumstances, reverse-engineering digital copyright protection code is illegal.

Except when:

(f) Reverse Engineering. — (1) Notwithstanding the provisions of subsection (a)(1)(A), a person who has lawfully obtained the right to use a copy of a computer program may circumvent a technological measure that effectively controls access to a particular portion of that program for the sole purpose of identifying and analyzing those elements of the program that are necessary to achieve interoperability of an independently created computer program with other programs, and that have not previously been readily available to the person engaging in the circumvention, to the extent any such acts of identification and analysis do not constitute infringement under this title.

(2) Notwithstanding the provisions of subsections (a)(2) and (b), a person may develop and employ technological means to circumvent a technological measure, or to circumvent protection afforded by a technological measure, in order to enable the identification and analysis under paragraph (1), or for the purpose of enabling interoperability of an independently created computer program with other programs, if such means are necessary to achieve such interoperability, to the extent that doing so does not constitute infringement under this title.

(3) The information acquired through the acts permitted under paragraph (1), and the means permitted under paragraph (2), may be made available to others if the person referred to in paragraph (1) or (2), as the case may be, provides such information or means solely for the purpose of enabling interoperability of an independently created computer program with other programs, and to the extent that doing so does not constitute infringement under this title or violate applicable law other than this section.

(4) For purposes of this subsection, the term “interoperability” means the ability of computer programs to exchange information, and of such programs mutually to use the information which has been exchanged.

 

[wikus]

First off, Apple patented something that we longtime touch developers considered obvious: adding a visual cue to slide-to-unlock. Several judges worldwide have since agreed on the obviousness.

Second, they didn't reference a lot of prior patents that they could've.

Third, they kept adding ONTO the original patent using a practice called "double patenting", where the patent applicant continues a previous patent in order to take advantage of the earlier priority date so they can sue others.

Read this patent analysis by M-CAM, which goes into details on the rejections that Apple kept trying to overcome, and how they eventually wore down the examiner.

Here's the original application.

Here's the first Patent: 7,657,849, which is still only about using a predefined path.

Here's the double dipping continuation filed in 2009: 8,046,721 which adds on less strict ways of unlocking that might be familiar to Android users.

This should be a sticky.

 

[KnightWRX]

The Judges are basically saying if someone invents a piece of software that is key to their making money, others can just go in and clone it and use it however cause they want all software patents to disappear.

These Judges just don't get it. It's a sad sad day when the legal system allows one party to steal and profit off the hard work of another party.

Hum, you obviously have no clue about software development. The "hard work" is making the actual software itself, not getting ideas and methods to do so. Copyright and trademark protects actual "clones" or "stealing", and trying to replicate software is actually hard work, thus you're not profiting from the hard work of others, you're doing hard work yourself.

----------

Except when:

Reverse engineering is always lawful. There is nothing in the law against reverse engineering. Digital copyright protection methods ? Notice how the law doesn't say it is the reverse engineering that is wrong, it's the "circumvention".

Thus, writing DeCSS and figuring out CSS encryption on DVD is lawful. Distributing it and using with the intent of piracy isn't. Distributing it for interoperability purposes is.

----------

My point was that software patents can be about other things than the actual code implemented. And reverse engineering is not legal in all circumstances, reverse-engineering digital copyright protection code is illegal.

How more wrong could you be. What is illegal is circumventing the DRM, not figuring out how it works. You could be reverse engineering it to implement it yourself. Think about figuring out DVD CSS or Blu-ray AACS to make software that encrypts your home movies and writes them to these medias with protection, but without a specification on how to do so. You're not circumventing anything, and thus you're not doing anything illegal.

 

[Hyper-X]

Reverse engineering is always lawful. There is nothing in the law against reverse engineering. Digital copyright protection methods ? Notice how the law doesn't say it is the reverse engineering that is wrong, it's the "circumvention".

This can't be more truthful than this, thanks Knight. Reverse engineering is what Compaq applied to IBM's BIOS and came up with the world's first IBM PC clone. If memory serves Compaq still couldn't account for why IBM's BIOS had extra blocks of data but nonetheless they realized it was not necessary.

Chris Pirillo's (youtube VBlogger) standpoint on software patents is he believes there needs to be patent reform on software, IOW eliminating and let people develop it further fueling innovation.

 

[gjwfoasfsaevg]

I have no idea why patenting a valuable innovation wouldn't win a cost benefit analysis. Unless the innovation is worth less than the few thousand dollars it takes to research and file a patent application.

OK, so now you have a patent, and let's say you find that Samsung is using the idea. Now what? Sue Samsung? Are you 100% certain that your own product doesn't violate any of Samsung's 50.000 patents? If yes, are you ready to spend hundreds of thousands on lawyers and years in court trying to prove it?

There are only two kinds of companies who can actually enforce their patents: big players, and patent trolls.

 

[roadbloc]

Software patents suck from a consumer point of view. I'd be happy to see them go.

 

[NAG]

Software patents suck from a consumer point of view. I'd be happy to see them go.

As implemented, they suck for a lot of people. They don't do what they're supposed to be doing.