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Is Apple's Multi-Touch Patent Valid?
Posted by
timothy
on Sat Feb 07, 2009 03:24 PM
from the what-the-judge-says-it-is dept.
from the what-the-judge-says-it-is dept.
An anonymous reader writes "There is evidence that Apple's multi-touch patent application may have failed to list some prior art that showed gestures in multi-touch interfaces as early as the mid 1980s. Some of these examples even appear in the bibliography of Wayne Westerman's doctoral dissertation, and he's one of the inventors on the application's list. If true, that could leave them wide open for legal attack, should they try suing someone like Palm for patent infringement.
Also, Apple may be infringing some key multi-touch patents owned by the University of Delaware — and co-developed by Westerman while getting his doctorate."
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Submission: Is Apple's Multi-Touch Patent Valid? by Anonymous Coward
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Backtrace (Score:3, Informative)
Re:Backtrace (Score:5, Funny)
No.
I'd rather read exactly the same comments in this section.
Parent
Let's see if Apple's patent survives Slashdot (Score:5, Funny)
The Android G1 & Multitouch.... (Score:5, Informative)
Interestingly, the G1 android phone has built-in support for multitouch, as demonstrated here [wordpress.com]. However, there are some issues which make it more useful for pinch-gestures than other types. (See here [wordpress.com] for a description of why this is.)
Multitouch "proof of concept" pinch-zoom support has already been incorporated [xda-developers.com] into unofficial Android firmware for the G1 (which incidentally is an AMAZING phone). If Apple's patent claims are busted-- and I'm still not clear on what types of multitouch it supposedly prohibits competitors from using-- it probably won't be long before we see multitouch show up on hardware that "officially" hadn't supported it previously.
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Re:Let's see if Apple's patent survives Slashdot (Score:5, Funny)
Considering the large number of unpaid sales and public relations staff Apple has here at Slashdot, I wouldn't be surprised.
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Of course it is invalid we have had touch screens for years before the iPhone was introduced.
I sincerely hope (Score:5, Informative)
NOT!
Or we'll have 20 years of touch screen stagnation. Great. Just as we are trying to get out of classic mobile phone layout stagnation.
Re:I sincerely hope (Score:5, Funny)
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Re: (Score:3, Insightful)
"Patent Law" and "Free Market" are mutually exclusive terms.
If this follows the Bluetooth patents scenario... (Score:5, Insightful)
Apple will end up paying the University of Delaware a few million, and then happily proceed unencumbered - which is what happened when the University of Washington's Electrical Engineering department took on Matsushita et. al.
and the iPhone trademark (Score:5, Interesting)
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Which is a good thing, because it means that one tech giant can't control/restrict/ransom this sort of tech, and that the Delaware patents will run out earlier than the apple one would.
Hooray!
âoeIt is inevitably infringing itself.â (Score:2, Insightful)
Re:It is inevitably infringing itself. (Score:4, Insightful)
But a patent infringement case can only proceed once the Pre hits the market â" widespread expectations call for a May launch â" and Apple has analyzed the deviceâ(TM)s software for possible infringement.
Totally not true! You are liable for patent infringement once you make the patented invention. You don't have to sell it to become liable.
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Re:It is inevitably infringing itself. (Score:5, Informative)
35 U.S.C. 271(a):
Except as otherwise provided in this title, whoever without authority makes, uses, offers to sell, or sells any patented invention, within the United States or imports into the United States any patented invention during the term of the patent therefor, infringes the patent.
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Re: (Score:2)
No, you are only talking about damages.
Bingo. You are only liable if you are depriving the IP owned from profit.
You may still be in violation but they cannot do anything until they can show damages, i.e. you can't be liable for something there are no damages for.
Where do damages come from? Commercial or public use (whether its educational or not)
Re:It is inevitably infringing itself. (Score:4, Informative)
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Re: (Score:2, Troll)
That's why I specifically said "Commercial or public use (whether its educational or not)."
The IP owner has to be able to specifically show how the infringer did X which caused the IP owner to lose the ability to do Y.
Good luck telling a judge that you THINK someone is infringing on your patent in their basement for their own use and you want in on the action because you're legally entitled.
What are you, an RIAA lawyer?
Re:It is inevitably infringing itself. (Score:4, Interesting)
The IP owner has to be able to specifically show how the infringer did X which caused the IP owner to lose the ability to do Y.
I don't know where you are getting this requirement that the patent holder has to suffer some type of damage. That is completely untrue. Read the statute that I showed you. There is nothing in it that says damages are required before bringing a lawsuit. Then read that case like I told you to.
Good luck telling a judge that you THINK someone is infringing on your patent in their basement for their own use and you want in on the action because you're legally entitled.
Suing someone who you think is infringing is a different issue. That has to do with discovery. But once again I will point out, a DIY inventor in his basement cannot use a patented invention for his own use/research without a license or the risk of an infringement suit. The argument here is that the DIY inventor should be forced to buy the invention from the patent holder before he is able to use/research it. Sure, no one would probably find out about a DIY inventor but that again is a totally different issue.
And since you asked, I am a law student. And as far as I know, the RIAA deals with copyrights, not patents.
Parent
Re: (Score:2)
Please stay in school longer.
From your link:
The Federal Circuit disagreed and pointed out that in Roche v. Bolar[3] and other cases it had held that although an experimental use exception as crafted in the nineteenth century continued to exist, it was a very narrow one for example âoeto satisfy idle curiosity or for strictly philosophical enquiryâ.
and then
the act does not qualify for the very narrow and strictly limited experimental use defense.
So, as you can see, you were arguing for me the whole time, you just didn't know it. :)
Re:It is inevitably infringing itself. (Score:4, Informative)
The court noted that even projects undertaken without direct commercial application often âoeunmistakably further the institutes legitimate business interests ... These projects also serve for example to increase the status of the institution and lure lucrative research grants, students and faculty.
You don't actually believe that Palm could argue that their phone development is solely for its amusement, to satisfy its idle curiosity, or for strictly philosophical inquiry do you?
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Re:It is inevitably infringing itself. (Score:5, Informative)
He is correct, patents do not require sale or commercial implementation by ANY party to be enforceable. Most patent holders won't go after DIY types who violate for personal use, but that's not because they have no legal ability to do so... rather it is because there is generally very little to gain by doing so other than bad publicity.
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Most patent holders won't go after DIY types who violate for personal use, but that's not because they have no legal ability to do so.
Actually, it IS because they have no legal recourse against DIY use of patented inventions. Patents only grant monopolies over commercial exploitation of an invention. You are explicitly allowed to employ the disclosed inventions for your personal use, or for educational purposes. You're just not allowed to sell or give it to others.
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Re: (Score:3, Informative)
35 U.S.C. 271(a):
Except as otherwise provided in this title, whoever without authority makes, uses, offers to sell, or sells any patented invention, within the United States or imports into the United States any patented invention during the term of the patent therefor, infringes the patent.
That make or use part pretty much says you're wrong. One can argue those as defenses, and you certainly aren't going to get much in terms of damages from a hobbist, but the rights granted in a patent is the right to EXCLUDE others as you wish. There is no requirement that any infringement be commercial.
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No, its not limited to commercial use. Any public display of the invention could be used to claim damages in court.
It's important to remember there is no criminal law being broken when you use a patent without a license. It's all civil.
So you have to be able to show damages to claim them from an infringer.
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Any public display of the invention could be used to claim damages in court.
Public display? You clearly have no idea what you are talking about. Public display is a copyright law thing, not a patent law thing.
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Actually, it IS because they have no legal recourse against DIY use of patented inventions. Patents only grant monopolies over commercial exploitation of an invention. You are explicitly allowed to employ the disclosed inventions for your personal use, or for educational purposes. You're just not allowed to sell or give it to others.
And you are encouraged to do this, improve the patented method, and get a patent on your improvement.
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Making an improvement does not cure infringement. Generally, you must still license the original patent in order to have clean hands in filing the improvement claim. The experimental use exception will not carry most patents through to the end. You can prepare a proof of concept under the extremely narrow and limited experimental use exception if you meet a variety of judicially-mandated standards, but you cannot prepare for introduction by beginning production, distributing prototypes to third parties f
Problems with patenting... (Score:5, Insightful)
Re:Problems with patenting... (Score:5, Interesting)
On the other hand, the problems that patents present to progress along a line of design can actually work in our favor. I've run up against patents in the past and in working on an alternate way of solving the problem I run into a better solution. There's no reason that what was patented is the best solution, it's most likely just the most obvious. It's actually a cool little trick for forcing development out of local minima (assuming a cost function on optimality like all sane people do).
Random rant: I've found 90% of the patents I run into are stuff someone patented to sit on and aren't actively developing. Apparently actually making the thing and marketing it are too hard, it's much more efficient to patent a swath of bad ideas and try to force licenses upon those who actually want to make progress.
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The problem with patenting multi-touch gestures is it can lead to a huge learning curve challenge.
To put it another way user interfaces are simply the language that computers and people use to talk to each other.
By allowing patenting language elements the patent office are promoting language splintering and all the problems that entails. Progressing the state of the art my foot.
Of course, the patent office claims that they don't allow the patenting of language elements but that's only their arbitrary de
Interesting Analysis (Score:5, Interesting)
Engadget wrote a surprisingly well thought out analysis of the patent situation between Apple and Palm:
http://www.engadget.com/2009/01/28/apple-vs-palm-the-in-depth-analysis/ [engadget.com]
It's interesting that the motivations behind their patents aren't as obvious as they may seem. For example, Apple has several patents in the pipeline simply so they can tweak them later to specifically target Palm's Pre.
Also interesting pinch-zoom is not covered (Score:2, Interesting)
The most useful idea of all, pinch to zoom, is not in the Apple patent - that seems the most useful thing, but probably has a lot of prior art around it.
I think the Apple patent will stand but I don't think it will have much effect on the industry and other devices.
Re: (Score:3, Interesting)
Re:Interesting Analysis (Score:5, Interesting)
Legal battles cost money and risk having patents invalidated. They are the Big Stick in the line "Walk softly, but carry a big stick." By having the patent they can intimidate their competitors into using only obviously non-infringing multi-touch features. Thus maintaining the novelty of their device.
Besides, I fail to see how their patent can stifle innovation. They were awarded the pantent for doing something innovative in the first place. If Palm wants to stay competetive they'll just have to do some more innovating to keep up.
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Re:Interesting Analysis (Score:4, Interesting)
According to the engadget article their patents are fairly specific and not overly broad, but if they were to sue Palm just for using multi-touch that would definitely be stifling innovation, and I don't see how that could be construed otherwise. If the patents prevent other companies from building on Apple's groundwork, that is also stifling innovation. It's not protecting their device's novelty so much as being lazy; why innovate when no one else can do anything similar to what you can do?
But the big stick analogy is good, as is the nuclear option analogy. I don't think either company really wants to enter a long and costly legal fight. I don't see why Palm would force their hand, but Apple has been threatening that they will "protect" their IP so if anyone would start the fight, it would have to be Apple.
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No (Score:3, Funny)
Next question.
But seriously, what difference does it make if apple patents this or not? I mean, no other GUI comes close to Apple's.
An example of this, was that I was not going to finish this post because this stuff is dumb, and people would come back saying that Apples UI is not that great, so I closed the tab. Safari asked if I wanted to close the tab because I was in the middle of filling in this form, with the default being Close (not OK, Cancel, or whatever).
I love multi-touch. I used to like having a mouse on a laptop, but now that multi-touch is here, its simply better than a mouse. Much more intuitive and less of an issue with RSI with a scroll-wheel.
I hate to sound too much like an Apple geek, but their software is so nice, that I'm always finding new things in it. Its almost like being with a person that you like. You are always learning something new about them. And I guess the inverse is true, that when you get bored with them, you find someone else.
I'm done hugging my MacBook :)
Back to multi-touch, I think that it should be allowed to be used by anyone. Its simply nice.
Re: (Score:2, Flamebait)
> I love multi-touch. I used to like having a mouse on a laptop, but now that multi-touch is here, its simply better than a mouse.
Perhaps for small notebooks, (or tablets), but realistically its simply too slow and disruptive with larger screens to be waving your entire arm around just to click a button. It also requires a very sparse interface to allow for imprecision of touch.
Much as a mouse can be compared to poking at machine together with a stick, multitouch can be like trying to assemble small par
Re: (Score:3, Insightful)
> I love multi-touch. I used to like having a mouse on a laptop, but now that multi-touch is here, its simply better than a mouse.
Perhaps for small notebooks, (or tablets), but realistically its simply too slow and disruptive with larger screens to be waving your entire arm around just to click a button. It also requires a very sparse interface to allow for imprecision of touch.
I'm pretty sure the gp was talking about multi-touch on his notebook's touchpad or multi-touch in general, not about touchscreens.
Re: (Score:2)
I just want to jump in and say "me too." Seriously, using verbs on buttons instead okay OK/Cancel is such an obvious interface improvement, and yet probably 90% of dialog boxe
is it me or... (Score:2, Insightful)
Does this, once again, show that patents on software ideas provide no benefit, what so ever, to the public?
I hope this gets overturned, or else, as another poster pointed out, we will see fighting among vendors and stagnation in an otherwise cool technology, which will leave us, the end user, not buying new stuff, because there is nothing to buy. Or not buying because you can only get incompatible versions from two or three big companies.
And for those who think that patent law exist to benefit the inventors
The idiocy of arguing not-even-filed claims (Score:2, Insightful)
So we're supposed to argue not-even-filed patent defenses ... a bunch of non-lawyers. Ridiculous post.
BTW, there are lots of patents with "prior art," including Amazon's one-touch. I am a patent attorney. I have no idea how this patent will fare but this discussion is a waste of time.
Some Background Information and Thoughts (Score:3, Informative)
Here are the University of Delaware-owned patents: 6,323,846 [google.com] and 6,888,536 [google.com]. Two other early Westerman patents (6,570,557 and 6,677,932) were assigned to FingerWorks, which was bought by Apple a few years ago.
Anyway, all of the Westerman patents are for the capacitive touchscreen itself and the accompanying software, not the multi-touch gestures covered by the recently granted Apple patent. It could very well be that the company that designed the screens (Balda [balda.de]) or the company that manufactured them (TPK Solutions [tpk-solutions.com]) has licensed the U of Delaware patents. Even if the screens are unlicensed, it could be that they do not infringe or that the Delaware patents are invalid. Given the amount of money that Balda, TPK, and Apple have riding on the iPhone, it is very likely that lots of due diligence was done on these issues, especially with Westerman working for Apple now.
Even if the Delaware patents are valid and infringed, it is quite likely that Apple's contract with Balda/TPK Solutions includes an indemnity clause that puts Balda/TPK on the hook rather than Apple. In the post-eBay v Mercexchange world, it is likely that the University of Delaware would be unable to enjoin Balda, TPK, or Apple, leaving it only able to collect damages and future royalties. Even if an injunction were to issue, I'm sure the University would be happy to negotiate a licensing agreement since it does not practice the patent itself. Finally, even if the University were to stonewall Apple, there are lots of other companies that make capacitive touchscreens that could fit the bill for the iPhone.
Now, let's turn to the issue of the prior art references omitted from Apple's patent application. Contrary to a popular misconception, there is no affirmative duty to submit every last possible prior art reference to the PTO, only those that are known to the applicant and material to patentability (that is, that could have made a difference in the PTO's decision). It could be that the submitted references covered everything that the Pierre Wellner reference disclosed, in which case the Wellner reference would be immaterial. Or it could be that the Apple patent only claims subject matter that is patentably distinct from the Wellner reference, in which case, again, it would be immaterial.
Yes, these are all potential issues, but determining the outcome will depend on a lot of information that is not publicly known (such as any Balda/TPK Solutions/Apple licensing deals with the University of Delaware) or that ultimately has to be determined by the PTO or a court (e.g., whether the University of Delaware patents are valid or whether Apple's patent is unenforceable for inequitable conduct). As a result, both of the linked articles are rife with speculation and conjecture. For now, this is pretty much a non-story. Come back if some of these patents are found invalid during reexamination or if Apple gets sued.
MIT Media Lab has prior art (Score:4, Informative)
Look into Dave Sturman's research in the mid 80's. He was using a Dataglove for gestural research. The Media Lab made a demo tape of him using gestures to pick menu items. I probably still have a copy of it kicking around somewhere.
Re: (Score:2)
The patent mentions "a device" in Apple's case. Its sufficient broadly worded to not tie it explicitly to software.
A more pertinent question: Can you patent a dance step?
Haha! (Score:2, Funny)