Tuesday, August 25, 2015

Google defeats Apple in Germany's highest court: slide-to-unlock not a patentable invention

Well over a year ago, Apple and Google announced an armistice under which they withdrew all pending patent infringement lawsuits against one another. I described that one as a second-class settlement from a position of mutual weakness. I still stand by that assessment, with one modification: Google actually got a better deal than Apple. Here's why:

While Google had to give up its original hopes that Motorola's patents could force Apple into a patent cross-license agreement covering the entire Android ecosystem, Google and its partners can also achieve patent peace by getting all the Apple patents invalidated (or narrowed beyond recognition) that have been or could be asserted against Android. Unlike Motorola (prior to being sold to Google for the first time, which later sold it on to Lenovo), Google never wanted to impose a patent tax on Apple: it just wanted its ecosystem to be left alone. Apple hasn't brought any new infringement cases against Android device makers in more than four years, and whatever little is left of Apple v. Samsung is not of concern to Google.

The spring 2014 armistice with Google has a major downside for Apple: it related only to infringement cases, not to challenges to the validity of its patents, a fact that was not clear at the time of the original announcement. Five months ago, the European Patent Office revoked Apple's iconic rubberbanding patent on a Europe-wide basis. The sole remaining party opposing the grant of that patent was Motorola. I have no doubt that Google (not Lenovo) is the driving force behind this continuing effort to shoot down Apple patents, and I guess Google is paying Quinn Emanuel for representing Motorola in cases such as that one.

Today, Google and QE's continuing efforts have succeeded once again (and most probably not for the last time): the Federal Court of Justice, Germany's highest court (besides, theoretically, the Federal Constitutional Court, which has never heard a patent case in its history), today announced (German-language press release) affirmance of the Federal Patent Court's April 2013 decision to invalidate the German part of Apple's European slide-to-unlock patent.

At the time of the previous decision, Samsung was actually leading the effort. I attended that hearing in Munich and Zimmermann & Partner's Dr. Joel Naegerl ("Nägerl" in German), a patent attorney Samsung has been working with in Germany for a long time, was standing in the front row of the part of the courtroom assigned to the attorneys of the complainants (the parties seeking invalidation), and was first to plead. But a year ago, Apple and Samsung agreed to drop all non-U.S. lawsuits against each other, and Samsung withdrew from the invalidation proceedings as a result of that partial settlement. It's easy to imagine why: unlike Google, which has to take care of the Android ecosystem as a whole (a reason for which I believe it should settle the Java copyright dispute with Oracle sooner rather than later), Samsung has no incentive for continuing to challenge patents that won't be used against it anymore.

HTC had also played a key role in the early stages of the case, but already dropped out during the proceedings in the lower court due to a global settlement with Apple.

The Federal Court of Justice found, as I had predicted on Twitter, that the Neonode N1m smartphone, which predates Apple's slide-to-unlock patent, anticipated the slide-to-unlock mechanism per se, so all that Apple could claim as an innovation on top of that one comes down to the visual representation (a slider movement), for which there also is prior art. What is not patent-eligible by German standards (and not under post-Alice U.S. standards either) is the notion of users being able to figure out a certain graphical representation (a slider) more intuitively than, for example, a text (such as the one the Neonode N1m displayed in the same situation) instructing users to swipe.

The number of judges who have now found Apple's slide-to-unlock patent invalid has increased from 10 to 15 (a Federal Court of Justice panel has five members). The only judge in the world who has held so far that Apple deserved a patent on that concept is Judge Lucy Koh of the United States District Court for the Northern District of California. Judge Koh has also made public statements that suggest the opposite of sympathy for parties who challenge bad patents. Her position on what constitutes a patentable invention (as opposed to a great but merely psychological idea without any technologically impressive aspect, which is the way I would describe slide-to-unlock as well as rubberbanding) is an outlier among the 16 judges who have ruled on this "invention" so far.

It will be interesting to see how the Federal Circuit, which also has some exceedingly patentee-friendly judges (Circuit Judge Reyna, for example) but now has a chief judge with a more balanced perspective than her predecessor and appears to have read the Alice writing on the Supreme Court wall, rules on Samsung's appeal of Judge Koh's decision. The Federal Circuit judges frequently talk to and sometimes meet face-to-face with the members of the patent-specialized senate (division) of the Federal Court of Justice of Germany. Maybe they will see eye to eye on this question. Jurisdictional differences exist, but they don't justify upholding a patent on psychology.

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