In its litigations against Android, Apple is still on a quest for the Holy Grail in terms of a few patents that are broad enough to be powerful (to the extent that Android device makers would have to settle) but nevertheless able to withstand challenges to their validity. So far, those Apple patents on which any court rulings have come down are either broad but (likely) invalid or valid but too narrow to bring about settlements that would meet Apple's strategic needs. This isn't Apple-specific but would apply to most patent holders.
Carrying on with its assertions (and appeals) provides Apple with two opportunities:
Over time, Apple can identify a long list of enforceable patents of the "data tapping", "overscroll bounceback", "slide-to-unlock image" and "photo gallery page-turning" kind: none of them would singlehandedly endanger Android, but a whole all-star team of such patents would provide meaningful product differentiation.
With a bit of luck, Apple may get a "hole in one" if it manages to enforce one or more "killer patents" with an impact far in excess of that of even five or six patents of the first category.
Without one or both of the above kinds of progress, Apple is neither able to defend the uniqueness of its products nor in a position to command significant license fees.
At this juncture, the patent that has, relatively speaking, the best prospects of singlehandedly securing victory for Apple -- and the patent that probably scares the living daylights out of Google's Android team -- is the "touchscreen heuristics" patent (whose inventors include Steve Jobs). In June, there will be trials at which Motorola and Samsung have to defend themselves against this one.
The '949 patent covers, with respect to a handful of rather basic gestures, the problem-solving strategy of interpreting the user's touchscreen commands by recognizing swipes that are not straight lines (a human being can hardly draw a perfectly straight line) by virtue of a certain level of tolerance. I have repeatedly said that this concept should not be patentable in my personal view, but I accept that Apple is quite successful at convincing different judges that this is patent is legitimate under the existing legal framework.
In January, Judge Richard Posner, a legendary judge and legal scholar, provided a first analysis of that patent that was very much in Apple's favor in its Chicago litigation with Motorola. Apple was quick to inform the ITC (where it is asserting this patent against Samsung) of Judge Posner's take. In early March, an Administrative Law Judge at the ITC also issued a claim construction order that worked out very well for Apple.
Judge Posner wasn't finished with his analysis of this patent in January. At that stage, he just dismissed Motorola's claim that the patent is invalid for lack of particularity, and Motorola's fallback argument that the patent is specific to a level of tolerance corresponding to a 27-degree angle. For that purpose, he also interpreted the term "heuristics", concluding that it means "one or more rules to be applied to data to assist in drawing inferences from that data". In a March 19 claim construction order, he looked at a couple more issues:
He agreed with Apple that the term "based on the angle of initial movement of the finger contact" is self-explanatory and rejected Motorola's proposal to make this the sole criterion for the determination of what the user wants to do.
He asked the parties for further input regarding Motorola's claim that the key claims of the patent fail to provide the structure required under the law for so-called means-plus-function claims.
On March 26, Apple and Motorola provided their supplemental claim construction briefs, and on Thursday, March 29, Judge Posner entered his related order, which is a clear win for Apple over Motorola (and Android in general). Jury trials come with considerable uncertainty, but based on Judge Posner's conclusions, Motorola will realistically be unable to avoid a finding of infringement and will have to come up with some really good invalidity arguments if it wants to avoid a disaster. It can, of course, still appeal the upcoming decision in Chicago to the Federal Circuit, which might interpret the patent differently or follow Motorola's indefiniteness arument (which I, in fact, support philosophically).
This patent covers gestures that all of us know because we use them on our multitouch handsets. In the following, I'll explain the particular gestures with respect to which the patent is deemed valid and the respects in which Judge Posner considers the description of the patent to lack sufficient structure:
Patent language: "a vertical screen scrolling heuristic for determining that the one or more finger contacts correspond to a one-dimensional vertical screen scrolling command rather than a two-dimensional screen translation command based on an angle of initial movement of a finger contact with respect to the touch screen display"
Simply put, this is about the distinction between a diagonal movement ("two-dimensional" meaning that there's a movement in the X as well as the Y direction) and a vertical scrolling swipe. If the initial angle is less than a specified angle, the command is a vertical scroll; otherwise it's a diagonal movement. The wording quoted above refers to the scenarios in which the determination is that the user wants to scroll vertically.Judge Posner already declared this passage valid in his January order and now decided to interpret it in accordance with Apple's proposal.
Patent language: "a two-dimensional screen translation heuristic for determining that the one or more finger contacts correspond to the two-dimensional screen translation command rather than the one-dimensional vertical screen scrolling command based on the angle of initial movement of the finger contact with respect to the touch screen display"
Simply put, this is about the same distinction as the previous one, just with a different conclusion (the user wants to scroll diagonally).
Accordingly, Judge Posner also decided on this one in Apple's favor.
Patent claim language: "a heuristic for determining that the one or more finger contacts correspond to a command to transition from displaying a respective item in a set of items to displaying a next item in the set of items"
Simply put, this is the gesture that is used, among other things, to flip through photos in a digital gallery. Apple told the court that its patent describes two kinds of flip-to-next-item gestures: a horizontal right-to-left finger swipe and a finger tap on the right side of the screen.
Judge Posner agrees on the finger tap at the margin of the screen but felt that the patent doesn't clarify how a right-to-left swipe would be distinguished from a horizontal scrolling gesture. It appears that Apple's patent doesn't describe the other criteria that would be applied. In some cases, the horizontal swipe might have the desired effect simply based on the application that is running (photo gallery, for instance). In other cases, the distinction might depend on whether one makes the gesture only once versus twice in short succession, or on the width of the movement. But the patent doesn't appear to say so, and that's why Apple can't assert it against Motorola in connection with that particular gesture. Apple could still assert it with respect to the finger tap at the margin of the screen, but if Motorola even has an infringement issue, it would probably find prior art.
Patent language: "a heuristic for determining that the one or more finger contacts correspond to a command to translate content within a frame rather than translating an entire page that includes the frame"
Simply put, this is about scrolling within a certain region of a displayed document, such as a rectangle in which a map is being displayed, versus scrolling the document as a whole. The two proposals Apple makes are a distinction based on the number of fingers used (with the use of one or more additional fingers limiting a gesture to a region) and a distinction based on whether the gesture is made inside or outside the relevant region.
Judge Posner found that the patent's description supports the first criterion (number of fingers) but not the second (location of gesture).
Patent language: "a heuristic for determining that the one or more first finger contacts correspond to a one-dimensional horizontal screen scrolling command rather than the two-dimensional screen translation command based on the angle of initial movement of the finger contact with respect to the touch screen display"
Simply put, this is the horizontal version of the first term.
Accordingly, Apple prevailed on this one, too.
In connection with the fifth term, Judge Posner expressed some annoyance at Motorola's repetition of an unpersuasive argument:
"I reject Motorola's argument (this is the third time they've made it and the third time I reject it) that the structure must be limited to the 27-degree angle used as an example by the specification."
I have read the patent and the 27-degree angle is clearly identified as merely an example. Motorola can't seriously believe that this is a way out of infringement. Like I said further above, Motorola will either need to invalidate this patent based on prior art or will depend on an appeal (to have one or more of Judge Posner's legal findings overturned).
That said, Apple's argument in support of this patent also contains something I don't agree with:
"[H]aving identified the problems associated with imprecise finger gestures, solved them, and successfully incorporated them into a commercial product, Apple should be entitled to the fruits of its innovation via broad patent protection, and the public is benefited by the disclosure of Apple’s invention."
The public would be benefited by the disclosure after the expiration of this patent in 2028. Yes, 2028. I can't see that the ideas Apple came up with here -- and those are good ideas, for sure, but sooner or later others would have come up with them anyway -- should result in a monopoly until the year 2028 if this is meant to benefit the public.
Apple argues that "if it turns out the claims are too broadly written and run afoul of the prior art, that is an issue that may be resolved at trial or via summary judgment", which is legally accurate, but the idea of interpreting gestures, which are inherently imprecise if made by a human being, by applying a certain degree of tolerance shouldn't be patentable regardless of who was first to come up with it. That's why I agreed with Motorola's request to declare the patent invalid for indefiniteness. But Apple won in Chicago, Apple won at the ITC, and now Motorola and Samsung, and the Android ecosystem at large, face a serious threat. If Android devices can't implement any of the gestures described above, they won't be competitive.
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