Let me start with a picture that is so telling. Apple is suing Samsung in California over "slide to unlock", but a little-known Swedish touchscreen phone, the Neonode N1m, already had that feature (though Apple's version undoubtedly has a more elaborate graphical representation) well before the iPhone was launched:
For the most part the Apple v. Samsung II trial reports I saw on Twitter and the Web weren't surprising. This is not going to be a very exciting sequel. I'm not even that impressed by Samsung's presentation of a Steve Jobs email ordering his troops to wage a "holy war" on Android because it's consistent with his purported willingness to "go thermonuclear war", though an Apple-internal email will bear more weight with a jury than a biography. And after Apple sent one of the named inventors on its "slide to unlock" '721 patent to the Wall Street Journal for a pretrial story, I figured that it was going to place particular emphasis on this patent because it's the easiest one of their patents-in-suit to explain and the one with which one can mislead a jury into believing that Samsung "copied" Apple's patents-in-suit.
But to me, after 3.5 years of following Apple's Android litigations on a cross-jurisdictional basis, "slide to unlock", an invention over which I attended more court hearings and trials than presumably anyone else on this planet, stands for quite the opposite of what Apple's trial counsel says and implies. The litigation track record of this patent, more than of any other, has over the years changed my perspective on Apple's Android lawsuits from "bullish" to "bearish". There comes a point when failure after failure is just too much, and I recognize that I had overestimated the leverage Apple could gain from its patents (the next post will address this more generally but I wanted to start with "slide to unlock", which is so instructive and symptomatic -- a poster child of Apple's problems).
Yesterday a few people asked me on Twitter whether or why my attitude towards Apple's lawsuits has changed recently. I think some of it is attributable to a misperception of what I had been saying over the years. I wasn't nearly as "pro-Apple" or "anti-Android" as some people made me out to be, but when I said something positive for Apple, it reaffirmed many people's beliefs, and when I said something positive for Android, it didn't fit into the picture. Fere libenter homines id quod volunt credunt. Maybe I will list at some point all the "pro-Android" and "anti-Apple" positions I had taken over the years -- and the length and the substance of the list would shock a lot of people. But in any event, there are three things I can't and won't ignore:
- There's the long-term track record of Apple's Android litigations across jurisdictions, and in 49 months of holy, thermonuclear war Apple has not proven that anyone in the world besides demonstrably biased U.S. juries and U.S. government agencies would give Apple any significant leverage over Android (even in the U.S., Samsung appears to be selling products that consumers like just as much as if Apple had never won anything in court). More about that in the next post.
The second thing I can't ignore is that some recent court orders support Samsung's positions rather than Apple's. The issue I once called "Patentgate" has become a total non-issue not only because Samsung itself wasn't sanctioned but even more so because Apple itself had made the terms of the Nokia license deal accessible to the whole world. And even after a partly-successful appeal, Apple failed to win a permanent injunction against Samsung. Judge Koh, who once agreed with Apple that Samsung should not be allowed to continually release infringing products, now appears to find Samsung's products to be substantially lawful competition:
"Apple, in other words, cannot obtain a permanent injunction merely because Samsung's lawful competition impacts Apple in a way that monetary damages cannot remedy. To award an injunction to Apple in these circumstances would ignore the Federal Circuit's warning that a patentee may not 'leverage its patent for competitive gain beyond that which the inventive contribution and value of the patent warrant.'"
I wouldn't agree with everything Samsung's counsel told the jury yesterday, and I frankly wonder what bearing Apple's maps issues in Australia have on a patent trial where no mapping technology is at issue, but I think John Quinn absolutely nailed it when he said that Apple is trying to win from the jury in that San Jose courtroom what it has lost in the marketplace. On the same day I saw this Computerworld article on worldwide market shares of major wireless platforms, and the table that Preston Gralla published speaks volumes. It starts with Germany (where I live and hear Samsung email/SMS ringtones wherever I go). Android 75.7%, up from 71.9% a year earlier; iOS, down from 18.8% to 15.3%. Even in the U.S., Android now has 55% (versus 51.1% a year ago), and iOS is down from 43.6% to 38.7%. In the UK, Android at 54%, iOS at 32.1% (vs. 29%). In China, Android at 80.3%, iOS at 17.9%. In France, Android at 67.7% (up from 61.9%), iOS slightly down from 23.1% to 21.1%. In Australia, Android at 58.5%, iOS at 33.9% (not much change). Italy: Android at 67.6%, iOS in free fall from 22.6% to 13.6%. Only in Japan it has more than 50% (54.9%) and is even growing, for now. In Spain, iOS has been marginalized (though it's slightly up at 6.3%) by Android with 88% market share. Across the five largest EU economies (Germany, UK, France, Italy, Spain), Android is at 68.9% (up) and iOS at 19.0% (down). And the latest report (in German) from Switzerland, a tiny but wealthy and traditionally very Apple-friendly country, is that Android is now the market leader there, too. Even there.
I'm not the kind of guy who would turn a blind eye to hard facts. There's something that Dr. Maria Berger, a former Austrian minister of justice who is presently a judge on the Court of Justice of the European Union, said about me publicly that I'm no less proud of than any award I won or ranking I was named to. She said (in a newspaper interview in 2006 in which she was asked what she regarded as my key strengths) that I was "prepared to adjust [my] positions". And that's why I, despite having founded and run a campaign against software patents, am currently working on my own first patent application because I want to protect the key differentiating feature of the app I'm working on. It's why I'm now developing my own app for Android first, though I feared for its future because of some companies' patent assertions. And it's why I think Apple's accusatory and inflammatory rhetoric at the trial is not supported by some rather sobering facts.
Finally, after a picture that was worth at least a thousand words and a long introductory part, let me provide you with the litigation track record of "slide to unlock" before this California trial. Before I go into detail, I will point out that Apple is asserting an optimized claim language (optimized for validity and infringement purposes) in San Jose, but the invention is the same one. It's also important to consider differences between U.S. and European patent laws regarding patent-eligible subject matter (Europe, an engineering-focused patent jurisdiction, has a "technicity" requirement that contrasts with the "everything under the Sun made by Man" approach in the U.S. and is stricter than the U.S. exclusion of abstract ideas) and admissibility of prior art. But the purpose here is not to predict the U.S. outcome on "slide to unlock". It's to put Apple's claims of inventorship into perspective. Should Apple prevail on "slide to unlock" in the U.S., this would support Samsung's position that Apple can win only on its home turf.
All ten European judges who had to rule on the European slide-to-unlock patent concluded that Apple did not deserve a patent for this invention in light of, especially, the Neonode N1m I showed you further above:
On August 24, 2011, Judge Brinkman of the Rechtbank 's-Gravenhage (The Hague District Court) denied Apple a preliminary injunction with respect to "slide to unlock" because he doubted its validity and found it trivial (original decision, in Dutch).
On July 4, 2012, Justice Floyd of the England and Wales High Court held that "[a]ll the claims of [the European slide-to-unlock patent] are obvious in the light of Neonode".
Apple appealed the UK decision, but Lord Justice Richards, Lord Justice Lewison and Lord Justice Kitchin of the England and Wales Court of Appeal unanimously affirmed Justice Floyd's decision with respect to slide-to-unlock.
In the meantime, on April 4, 2013, Presiding Judge Sredl and Judges Merzbach, Baumgardt, Dr. Thum-Rung and Dr. Forkel of the Bundespatentgericht (Federal Patent Court of Germany) -- three of whom are technically-trained judges (engineering and science degrees) -- declared all claims of the European slide-to-unlock patent (including various amendments proposed by Apple) invalid (original decision, in German).
I attended the full-day Federal Patent Court nullity trial. I also attended various slide-to-unlock-related hearings and trials in German infringement cases (Munich I Regional Court: first hearing and trial against Motorola Mobility, and at least one hearing or trial against HTC; Munich Higher Regional Court: appellate hearing against Motorola Mobility; Mannheim Regional Court: trials against Samsung over slide-to-unlock patent and a German utility model based on the same patent application).
What I learned there in great depth is that even if one thought (unlike those ten European judges sitting on four courts in three countries) Apple somehow deserved a slide-to-unlock patent, the scope is limited and it can be worked around. I also learned that this patent basically became a victim of the invention's success in the marketplace. Since Apple's patent doesn't cover all slide-to-unlock implementations but only some of the ones where an image is moved across the screen, the question of whether there is an infringement depends on details of the claims and of an accused embodiment. The iOS version is definitely the best way to present slide-to-unlock to someone who doesn't know what to do in order to unlock a device. But because Apple made this feature so popular, people now know what to do, and they just touch a screen and move the finger in some direction, and that's how Android devices are unlocked nowadays. They don't have to display an iOS-style slider (anymore) because people intuitively slide to unlock. And that means Android devices can come with perfectly lawful slide-to-unlock solutions. Apple doesn't own all slide-to-unlock. It depends on what you see on the screen, and how much flexibility you have in terms of where you touch first and how far and in which direction(s) you move. The further a slide-to-unlock implementation is from the rigid (though self-explanatory) iOS slider, the less likely Apple is to have a valid infringement theory.
I remember quite well how underwhelmed I was by the European version of the slide-to-unlock patent in December 2011 at a Mannheim trial where Apple was asserting it against Samsung. The court was discussing with parties' counsel a couple of different variants of slide-to-unlock, and ultimately found none of Samsung's slide-to-unlock solutions to infringe. A patent attorney who was not involved with this case (but with other smartphone cases, so I met him at many trials and hearings in recent years) was sitting next to me and I said to him (and others could also hear me say): "These Apple patents just aren't strong enough." I didn't mean to be negative about Apple's innovative capacity, but I couldn't see how Apple would stop Android and, especially, the unstoppable Samsung with patents of this kind.
In April 2012 I commented on Samsung's defenses to a preliminary injunction motion by Apple (this was the earliest stage of the case that is now being tried) and wrote the following about slide-to-unlock:
"In my opinion, Apple's patent department did a great job optimizing the new slide-to-unlock patent to counter many of the arguments that might have worked against the previous one. But Samsung, in conjunction with Google, also did a great job designing the slide-to-unlock mechanism of the Galaxy Nexus so as to steer clear of infringement. If I were the judge, having looked in more detail now at how the slide-to-unlock circle of the Galaxy Nexus works, I would probably come down on Samsung's side on this one. I think the new slide-to-unlock patent is useful to Apple in order to ensure differentiation since it really forces Android device makers to implement rather distinguishable slide-to-unlock mechanisms, but after some further analysis I have serious doubt that the slide-to-unlock circle infringes it."
(Judge Koh viewed this part differently but didn't grant Apple an injunction over this patent anyway, which is why her preliminary analysis of this patent was not outcome-determinative.)
The passage I just quoted from what I wrote two years ago is one of numerous items that I would have to put on my list of so-called "pro-Android" and "anti-Apple" statements that went unnoticed by too many people out there.
It speaks for Google and Samsung that they came up with truly innovative slide-to-unlock mechanisms. It also means that Apple's patent enforcement forced others to innovate. I've always said Apple's enforcement is perfectly legitimate, though this doesn't mean Apple can limit consumer choice at the end of the day.
Actually, the slide-to-unlock implementations of today's Android devices are better than Apple's if a user already knows what to do. I can just touch the screen wherever I want and quickly unlock my device. Again, Apple's visualization was the best one when the feature was new, a long time ago.
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