For as much as slide-to-unlock has become a signature feature of iOS devices (even to the extent that a German company is selling a slide-to-unlock door mat), the related patent hasn't really served Apple well in its various lawsuits against Android device makers. The only injunction that Apple has won over EP1964022 on "unlocking a device by performing gestures on an unlock image", against now-Google-subsidiary Motorola Mobility in Germany, may go away in a few months or be narrowed. The patent may even be declared invalid in Germany (European patents cannot be invalidated Europe-wide at this stage unless they are challenged within nine months of grant in an opposition proceeding before the European Patent Office, so after nine months it's a country-by-country matter).
Here's a recap of the slide-to-unlock litigation history (leaving aside cases that have not come to any kind of judgment yet or that were dropped as a result of Apple's settlements with Nokia and HTC):
Judges in the Netherlands and the UK have considered all of the claims asserted in the respective cases invalid. The Mannheim Regional Court cleared Samsung of infringement of a slide-to-unlock patent and stayed a case over a related utility model (basically a second-class patent). There have been only two infringement findings in Apple's favor, one by Judge Koh and one by the Munich I Regional Court. Judge Koh's finding was based not on the original slide-to-unlock patent but on a derivative U.S. patent optimized in different ways (in some ways to capture more infringements and in other ways to counter prior art contentions), and while she granted a preliminary injunction against the Galaxy Nexus over a different (Siri-related) patent, her equitable analysis with respect to slide-to-unlock favored Samsung, so the infringement finding remained inconsequential. Only the Munich-based court granted Apple a sales ban over this patent. The defendant in that case was Motorola Mobility, and the decision came down in mid-February.
In the Munich ruling, two of three accused slide-to-unlock mechanisms were held to infringe. Motorola appealed those parts of the decision. Apple could have appealed the unfavorable third, but it elected not to do so, presumably because it realized that its infringement theory with respect to that particular slide-to-unlock implementation was rather far-fetched and would have required an exceedingly broad claim construction, which would entail serious validity problems.
Not only has the initial Munich ruling been appealed but three parties (Motorola, Samsung, HTC, with the latter one having withdrawn its complaint further to a settlement) previously brought nullity (invalidation) actions against it. In accordance with German bifurcation rules, patent validity issues are adjudged by the Federal Patent Court (and appealed to the Federal Court of Justice), with courts only assessing in infringement cases the likelihood of invalidation and granting a stay if there's a reasonably high probability (it has to be quite high, like 80% or more, at the regional courts but on appeal the threshold goes down).
The Federal Patent Court enjoys a great reputation but it has a huge backlog, especially in this field of technology, so it usually makes its decisions on a given patent long after the first infringement ruling and sometimes even after the appeal. In this particular Apple v. Motorola Mobility case, a hearing (at the end of which there may very well be a/n in/validity ruling) by the Federal Patent Court has been scheduled for April 4, 2013, but the hearing on Motorola's appeal to the Munich Higher Regional Court already took place on Thursday (December 13, 2012). Judge Konrad Retzer, the judge presiding over the appeal, was aware of this and scheduled his decision for April 25, 2013, enabling his court to look at the state of affairs following the Federal Patent Court hearing before deciding on the infringement issues.
The Federal Patent Court happens to be based in Munich as well. I plan to attend the nullity hearing, of course. There is no guarantee that a decision will be announced, but it's reasonably likely. There are three basic possibilities:
If the patent is affirmed in its entirety (at least with respect to the asserted claims, which are method claim 1 and apparatus claim 6 in the Munich case), the Munich Higher Regional Court will rule on Motorola's appeal of Apple's injunction.
If the patent is invalidated with respect to the German market (at least the asserted claims), the Munich injunction will become unenforceable and the Munich Higher Regional Court won't have to rule on infringement.
If the asserted claims are neither invalidated nor affirmed in their entirety but modified (which Apple could still do at the April 4 hearing), then the Munich Higher Regional Court has to re-evaluate the whole infringement question based on the new claims. This would likely require a new appeals hearing, and cause significant delay. In the meantime, the Munich injunction based on obsolete versions of the claims would no longer be enforceable.
The Federal Patent Court's decision can be appealed, and whoever loses will appeal, or if it's a mixed result, both sides (the challengers, Samsung and Motorola, or the defendant, Apple) may appeal. And that would take another couple of years. The Munich Higher Regional Court will issue some order in the spring, but it could also stay the case (and the enforcement of the existing injunction) until the appeal of the nullity action is resolved. In a few months we'll know.
In terms of the likely outcome, I believe Apple is rather unlikely to defend the existing Munich injunction. The appeals hearing went rather well for Motorola Mobility, and there is widespread doubt in the wireless industry (even among companies that don't have to deal with this patent at the moment) and the IP community about the validity of the slide-to-unlock patent, all of which makes the combination of a favorable appeals ruling and a dismissal of the Samsung/Motorola nullity action not too likely. I think Apple will be lucky if it can defend some of the narrower claims of the patent, possibly by modifying some of the current ones.
To be precise, this is not a patent on all slide-to-unlock mechanisms. Slide-to-unlock existed before such as in the form of the Neonode N1m. And there were PC interfaces with sliders that had the effect of switching something on or off. Apple counters such prior art only by saying that locking and unlocking a device is different from turning it on and off, and claims that engineers working on touch phones wouldn't have a motivation to look up prior art from the PC world, but those arguments aren't extremely compelling. Apple itself refers to smartphones as mobile computers, so it must accept that prior art from the realm of computing is generally considered eligible in connection with its touchscreen patents.
Android device makers have been quite creative in working around the slide-to-unlock patent. It speaks volumes that Motorola doesn't even need to win this appeal in order to have a legally safe slide-to-unlock mechanism: one of the three accused implementations was cleared and the non-infringement finding was, as I mentioned above, not appealed. Nevertheless there would be value to Apple in some line-drawing. In a recent post on the anti-cloning section of Apple's license agreement with HTC I explained the concept of an inner circle and an outer part of a wider circle. The inner circle is where Apple's features would be cloned to the extent of indistinguishability. That's what Apple absolutely doesn't want to happen, not even if someone is willing to pay license fees. The outer part of the circle is the extent to which Apple's patents have scope beyond the inner circle. Apple is willing to allow the use of its patents in that regard, but it wants to get paid, which also has implications for the parties' relative competitiveness.
Even the inner circle, as Apple defines it, is broader than the scope of protection Apple would be afforded under copyright law. Copyright would help Apple only if someone pretty much copied the slide-to-unlock graphics. But it wouldn't work if a visually distinctive implementation has the same concept of a channel within which the slider has to be moved. Only patents (or patent-like rights such as a utility model) can be asserted successfully against that kind of imitation.
Some patents have a broad scope, which also exposes them to a high risk of invalidation. Other patents have a narrow scope, which makes them harder to invalidate but also easy to work around. Apple's slide-to-unlock patent faces the unfortunate combination of both problems, due to a combination of a lack of true technological innovation behind it and poor drafting (poor drafting is shown by the fact that Apple retried with an optimized new U.S. patent, as I mentioned further above).
The patent as it stands applies to the idea of moving an unlock image across the screen, such as in a channel (a channel is, however, required only at the level of a dependent claim). Judge Retzer didn't indicate an inclination in his opening remarks, but throughout the course of the hearing he appeared to develop serious doubt about Apple's infringement allegations against Motorola's two accused slide-to-unlock implementations. It appeared that Motorola's lawyers, led by Quinn Emanuel's Dr. Marcus Grosch, struck a chord with Judge Retzer when they argued that the actual slide-to-unlock image -- a lock symbol -- stays put in its place during the sliding gesture. There is a visual feedback in the form of a colored trail that indicates the progress of the sliding gesture, but that is separate from the lock symbol. Judge Retzer noted that Apple's infringement theory essentially negated the need to have the first unlock image if the entire operation can be performed without it.
In addition, there's always the question of whether the claim limitations of a "predefined displayed path" are met. A broad claim construction would consider anything with a starting point and destination region (and perhaps some visual indication of a direction) a path. A narrow one requires it to be a straight line or channel. I agree with Apple that some courts got this wrong by interpreting the term "path" as if we were talking about a real-world path, such as a way from one village to the next: any claim construction should take into consideration that there's only a short distance between two points (or regions) on a touchscreen of a handheld device.
Whoever drafted that patent was apparently unaware of some important prior art (or didn't care but just wanted to obtain the broadest possible patent) and didn't anticipate many, if any, of the ways in which Android device makers later tried to design around the patent. A lot of what has been done could have been anticipated and appropriately addressed. There was clearly a lack of foresight back then. I don't think the lawyers who now try to defend the validity of this patent and to win infringement cases deserve any blame for being unable to win the uphill battle they face.
I said that patents can only be invalidated on a country-by-country basis. But courts in one country do look at decisions in another. If after the UK High Court and the Rechtbank 's-Gravenhage the German Federal Patent Court also invalidated this patent, I can't see how it would be successfully enforce anywhere in Europe, and probably not in Australia or Asia. In the U.S., the focus will now shift to the new and optimized slide-to-unlock patent anyway. That one is U.S. Patent No, 8,046,721. In my view it can also be worked around in many ways, but it's clearly more suitable for infringement allegations, and its validity is more defensible.
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