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Is Apple's Multi-Touch Patent Valid? 112

Posted by timothy
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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Is Apple's Multi-Touch Patent Valid?

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  • Backtrace (Score:3, Informative)

    by Anonymous Coward on Saturday February 07, 2009 @04:40PM (#26766563)
    Before posting, read the ~450 comments on the previous article. [slashdot.org]
  • I sincerely hope (Score:5, Informative)

    by Archimonde (668883) on Saturday February 07, 2009 @04:45PM (#26766593) Homepage

    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.

  • by Anonymous Coward on Saturday February 07, 2009 @05:07PM (#26766733)

    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.

  • by binarylarry (1338699) on Saturday February 07, 2009 @05:08PM (#26766741)

    Actually, you're wrong.

    The sales of the patented technology deprive the original inventor of income that they are legally owed.

    So you are not liable until you use the technology in commerce/public.

  • by DustyShadow (691635) on Saturday February 07, 2009 @05:14PM (#26766795) Homepage
    No, you are only talking about damages. A patent is a right to exclude others from making, selling, etc.
    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.

  • by Grond (15515) on Saturday February 07, 2009 @05:53PM (#26767013) Homepage

    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.

  • by Miseph (979059) on Saturday February 07, 2009 @05:55PM (#26767027) Journal

    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.

  • by k_187 (61692) on Saturday February 07, 2009 @06:26PM (#26767255) Journal

    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.

  • by DustyShadow (691635) on Saturday February 07, 2009 @06:36PM (#26767341) Homepage
    You are still incorrect. Liability does not turn on commercial activity. The patent holder could seek an injunction, which is often just as bad as financial damages. Apple could easily file an infringement suit against Palm to stop them from releasing the phone. Read the case Madey v. Duke [ladas.com]. What you are claiming is common and incorrect belief.
  • by DustyShadow (691635) on Saturday February 07, 2009 @07:34PM (#26767763) Homepage
    No. The court said that the exemption is extremely narrow and that Duke's activities did not allow it to use the defense (which the court defined as solely for amusement, to satisfy idle curiosity, or for strictly philosophical inquiry). Prior to this case it was believed that universities could experiment with patented inventions with no threat of an infringement suit.

    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?

  • by Anonymous Coward on Saturday February 07, 2009 @07:36PM (#26767779)

    No, you are still incorrect. Experimental use as a defense is, as you quote, very narrow and extremely strict. An individual infringing a patent for his own benefit, i.e. to use the patented process or manufacture, does not qualify for an experimental use defense and is liable for damages.

    There are only two lines of defense for the builder, and both are pragmatic and not legal in nature: (1) the patent holder must become aware of the infringement in order to file suit and (2) the patent holder must see it as worthwhile to engage in such a suit. Since the private citizen infringer is not likely to interfere with the market, and since he likely has no assets worth winning, there's little to be gained in the suit.

    All of that changes once that person decides to share that information with others. IAAL, and the law student is correct, if sophomoric in fumbling around the language.

  • by Anonymous Coward on Sunday February 08, 2009 @12:25AM (#26769479)

    Re-examinations, and not continuations ... because if they get hammered on inequitable conduct, it could take down the entire family of cases.

  • by FranTaylor (164577) on Sunday February 08, 2009 @04:51AM (#26770799)

    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.

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