Thursday, March 26, 2015

European Patent Office revokes rubberbanding patent: Google and its partners win, Apple appeals

Two weeks ago I highlighted some smartphone patent cases that are still ongoing but have almost been forgotten by the public, including, among others, Google's continuing efforts to have Apple's European rubberbanding (overscroll bounce patent, EP 2126678, revoked. Originally, Samsung and HTC were also pushing for the same result, but due to HTC's worldwide settlement and Samsung's mutual ex-U.S. armistice with Apple, only Google (formally through Motorola Mobility) continued to participate in the proceedings. Still, Samsung and HTC's filings remained on the docket and relevant to the decision, so the time and money they had spent wasn't lost at all.

Last year, the EPO's Opposition Division had already communicated its preliminary position, which was that this patent is entirely invalid in Europe. The two-day hearing was held two weeks ago, with Google's lawyers from Quinn Emanuel Germany appearing on Motorola's behalf. At the end of the hearing, the decision to revoke this patent and to reject all of Apple's amendments (including any that were introduced in the meantime) was announced. This decision has now been made official on the EPO's website:

"The European Patent is revoked because, account being taken of the amendments made by the patent proprietor during opposition proceedings, the patent and the invention to which it relates were found not to meet the requirements of the [European Patent Convention] (Art. 101(3)(b) EPC)."

In mid-2013, the United States Patent and Trademark Office had upheld three claims of that patent, including one Apple asserted against Samsung in the 2012 trial (and the related 2013 retrial).

Apple still hasn't given up on its European rubberbanding patent. This is an iconic user interface feature that Apple clearly wouldn't want its competitors to implement in Europe. Apple's lawyers submitted a notice of appeal to the EPO on March 19, days after the hearing and prior to receiving the written decision that will state the reasons in detail soon. As a result, a Technical Board of Appeal will at some point have to review the Opposition Division's decision.

I've seen various Apple patents go down in Europe, but Apple hasn't been able to defend any European patent Android was actually found to infringe, not counting (of course) patents that were upheld in formal terms only because, after a negative decision that was appealed, settlements put an end to the proceedings. Depending on what kind of procedure we're talking about and in which jurisdiction, a settlement can salvage a patent only because of the withdrawal of a party, regardless of prior negative decisions on the merits.

If one brings a challenge to a European patent within nine months of publication of the grant, the EPO can still look at an opposition and, as in this case, revoke the patent with respect to al European countries in which it was registered. Thereafter, European patents have to be challenged on a country-by-country basis. That's why, for example, Apple's slide-to-unlock patent was held invalid by ten different judges in three different countries.

Losing a patent like slide-to-unlock or rubberbanding in Europe is a disappointment for Apple, but it has no bottom-line impact, at least not in the short term (and probably not even in the mid to long term, though it does make it harder for Apple to position itself as a breakthrough innovator and its competitors (especially those whose devices run on Android) as copycats.

To the extent that U.S. judges (especially at the Federal Circuit, the center of gravity of Apple v. Samsung at this stage) hear about such rulings, bad news for Apple's European patents may also, not as the most important factor but as another piece of the puzzle, dissuade American jurists from buying Apple's innovator v. copycat story. For someone who argues that courts need to protect its groundbreaking innovation, Apple's patent assertions haven't had a whole lot of merit, though this is an industry-wide issue: smartphone patent assertions usually go nowhere. The U.S. is not the only jurisdiction in which Apple can win at all, but it's the only one in which can win anything meaningful. Substantive patent law has not been harmonized between the U.S. and Europe, but cross-jurisdictional differences will likely play less of a role in the future given the impact of the Supreme Court's Alice decision (which has turned out bigger than I would have thought, though I still think some people blow it out of proportion).

Again, none of this should have Apple investors or its loyal fans concerned. Steve Jobs thought patent litigation would help to keep Android at bay, and we all know by now that it won't--still Apple is doing fantastically well and will continue to do so for years to come.

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