This blog covers software patent news and issues with a particular focus on wireless, mobile devices (smartphones, tablet computers, connected cars) as well as select antitrust matters surrounding those devices.
Showing posts with label User Interface Patents. Show all posts
Showing posts with label User Interface Patents. Show all posts
There have been some new developments in the first U.S. litigation between Apple and Samsung pending in the Northern District of California. Time for a roundup:
Judge Lucy Koh has scheduled a preliminary injunction hearing concerning the Galaxy Tab 10.1 for Friday, June 29, 2012, as a follow-up to to the Federal Circuit's appellate decision. More detail below.
Apple has dropped an iPhone user interface design patent as part of continuing efforts to narrow the case with a view to the upcoming trial. More detail below.
At a summary judgment hearing last week (see this report by the IDG News Service), Judge Koh already scheduled a preliminary injunction hearing for Friday, June 29. A week ago I reported that a decision on Apple's post-appeal motion for a U.S. ban of the Galaxy Tab 10.1 over an iPad design patent was approaching after the Federal Circuit denied a Samsung request for a rehearing.
Late on Monday, Judge Koh entered an order for the upcoming hearing, telling the parties that, at the hearing, they "may address the two issues identified in the limited remand order by the Federal Circuit: (1) whether the balance of the hardships favors issuing a preliminary injunction, and (2) whether the public interest favors issuing a preliminary injunction", but "[n]o further briefing or evidence will be permitted".
The parties previously filed their related pleadings, so the court is already briefed. Apple brought its motion on May 18; Samsung responded a week later with a largely 4G-related argument, to which Apple replied on May 31 (see the first bullet point in this post). From the outset, Samsung argued that the district court would have to wait for the formal mandate from the Federal Circuit. Judge Koh nevertheless set the aforementioned, pretty expedited briefing schedule, but upon further consideration she canceled a June 7 hearing and denied Apple's motion as premature for the time being. In yesterday's filing, Judge Koh informs the parties that "the mandate from the Federal Circuit has been received and docketed by the Clerk" As a result, the ball is now, once again, in the district court.
I believe Judge Koh will decide very quickly on this one, either right from the bench on Friday or shortly thereafter. She also has a preliminary injunction motion targeting the Galaxy Nexus smartphone to adjudicate, following a June 7 hearing. She said that an order would issue shortly, but I predicted that this was going to take more than just a few days, though not as long as the decision on last year's motion (which took almost three months after the related hearing).
Last Wednesday, Apple gave notice of its "intent to dismiss claims concerning U.S. Patent No. D617,334, and a day later, Apple and Samsung filed a stipulation for the dismissal without prejudice (i.e., Apple could still enforce this patent against Samsung in another litigation) of this design patent.
During the last two rounds of narrowing proposals, Apple had already dropped two other design patents and announced that it was going to withdraw at least one more design patent. It has now apparently selected the D334 patent for this purpose.
From what I read about last week's hearing, Judge Koh keeps up the pressure with respect to narrowing. The parties will only get a limited amount of time and won't be allowed to file "thousands of documents", as Magistrate Judge Grewal informed them even ahead of Judge Koh's hearing. This means the parties will have to focus on their strongest arguments, and in order to do so, they may also decide to focus on even fewer intellectual property rights. Some pending summary judgment motions could also have a significant narrowing effect. Samsung still claims that Apple needs to drop more of its asserted rights. Apple definitely wants this case to go to trial on July 30.
There might also be some narrowing with a view to the FRAND issues raised by most of Samsung's offensive counterclaims. Judge Posner has shown how a court can deal efficiently with assertions of standard-essential patents. But Judge Koh appears to be much less aggressive when it comes to narrowing a case. And that may also benefit Apple for its own claims (which don't raise FRAND issues).
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In its lawsuits against the three leading Android device makers, Apple asserts a variety of patents ranging from mid-1990s Macintosh patents (such as the two HTC was found, on a preliminary basis, to infringe) to more recent technologies. Apple's number one priority clearly is to ensure that consumers will perceive the iPhone and iPad user experience as unique. That, in turn, means that Apple shoots for a substantial degradation of the Android user experience.
Patent enforcement is a "you win some, you lose some" kind of business. Apple litigates over a variety of multi-touch patents, and some of them are really very broad. Just two examples: U.S. Patent No. 7,663,607 covers a multipoint touchscreen (read its claim 1 to get an idea of the scope) and U.S. Patent No. 7,479,949 (first inventor on the list: Steve Jobs) lays exclusive claim to the use of heuristics (meaning experienced-based problem-solving strategies) for letting the operating system make educated guesses to interpret a user's intent based on where the user's fingers make contact with the screen. Those are, potentially, killer patents, but it's possible that a court could be convinced that Apple didn't really invent multi-touch as a whole (nor the use of heuristics for implementing it), and as a result, those patents could be invalidated or narrowed down to whatever technological progress Apple truly achieved. I guess it's worth trying to enforce those patents, but it would be difficult for Apple to rely just on patents of that kind. Apple is more likely to win with multiple narrower patents than a single nuclear bomb patent.
One patent stands out because Apple appears to be extremely convinced of its validity and enforceability. U.S. Patent No. 7,469,381 on "list scrolling and document translation, scaling, and rotation on a touch-screen display" is
I found two YouTube videos (out of presumably many) of demos of mobile devices that happen to show what list scrolling on a touch screen is like with and without the invention claimed by the '381 patent.
Here's a Samsung Galaxy S II demo by TechnixMedia:
About 16 seconds into the video, you can see that the user scrolls the list of settings. You can see the "Wireless and network" item at the top of the list. In reaction to the user's scroll gesture, the menu moves down for an instant, but it then bounces back so that the first list item ("Wireless and network") aligns with the top of the screen.
By contrast, here's a SlashGear video in which you can see what a similar operation looks like on a Google Nexus S:
The scroll operation I mean happens about 40 seconds into the video. It's the same Android menu (Settings), just that the operation is performed in the other direction. As you can see, the list does not move in the scrolling direction and then bounce back to the edge of the screen. When the end of the list is reached, the operation stops abruptly. An orange glow at the bottom of the screen signals that the scrolling operation hit one end of the list.
Based on those two videos, you may think that the difference between the two ways to handle list scrolling on a touch screen isn't significant. At the end of the day, they both serve the basic purpose of scrolling. But those are demo videos, and in actual "hands-down" use, there's a very important difference: the first kind of scrolling operation is smooth and intuitive because the list keeps moving along with your finger as long as you move it. Eventually, your finger will stop moving -- at the latest, it will stop when it hits the edge of the touch screen. But until then, the screen content sticks to your moving finger before it realigns with the edge of the screen. However, if you use a phone that doesn't have that feature, the scrolling operation stops abruptly while your finger keeps moving.
You get the same result either way, but Apple's patent covers the only way that looks and feels intuitive. Having a scrolling operation stop despite continued finger movement is counterintuitive. I experienced it first-hand on a Nokia phone that didn't have that feature (their more recent devices have that feature, and I heard that Windows Phone has that feature, so it won't be an issue for future Nokia devices). If scrolling stops though the finger keeps moving, many people intuitively press their finger more firmly onto the screen because it's almost as if the device wasn't reacting.
The "glow" is a very suboptimal solution. It tells you that you've reached the end of the list, but you still have the counterintuitive experience I described. That's because it will take your brain longer to notice and interpret the glow than to realize a disconnect between the movement of your finger and the scrolling of the screen content. Basically, the glow just limits the amount of time you'll spend continuing to move your finger. As soon as your brain has parsed the message the glow sends, you at least know that your touch screen isn't broken and you stop trying to scroll and pressing harder.
In the description part of the '381 patent document, Apple actually describes the scrolling behavior of devices without this patented feature as "awkward":
"[...] the limitations of conventional user interfaces can cause these actions to be awkward to perform.
Furthermore, scrolling displayed lists and translating electronic documents can be awkward on both portable and non-portable electronic devices with touch-screen displays. A user may become frustrated if the scrolling or translation does not reflect the user's intent. Similarly, a user may become frustrated if rotation and scaling of electronic documents does not reflect the user's intent.
The scope of the patent (which is defined by its claims, not its title or abstract) is obviously not as broad as covering "anything multi-touch". However, it's still broad in the sense that there's no workaround. The patent does not relate to only one particular way of implementing the behavior I described, such as one particular algorithm. It covers all ways to do this.
One such element of the user experience can't render Android totally unsalable. But if Apple can force Android device makers to remove this feature (which Google's own Android distribution doesn't even have because Google is apparently afraid of the '381 patent), consumers using those devices will be less satisfied. If they get to try out an iPhone or iPad, this feature will contribute to an overall impression of iOS sporting the more intuitive and enjoyable user interface.
And with several such patents, it's possible for Apple to create a very serious user experience gap between its own products and those of its competitors.
Death by a thousand cuts. Well, it won't literally take a thousand patents. But the key thing is: one such patent has an effect, and several of them can collectively have major impact.
In the first part of this post I already mentioned the disputes in which Apple has put this patent to use. It seems that they now tend to use it in their most time-sensitive and crucial actions.
This is how Apple emphasized the strength of this patent in its motion for a preliminary injunction against Samsung in the U.S.:
"The '381 patent is a strong, easily understood patent. It is directed to a clever method for displaying images on touch screens: when one uses a finger to drag a displayed page past its bottom edge, for example, and releases the finger, the page bounces back to fill the full screen. The claims of the '381 patent are so clear that in recent litigation between Apple and Nokia Corporation, neither side asked the court to construe any terms. A simple demonstration proves that Samsung's products infringe. Moreover, the Patent Office confirmed the validity of all twenty claims of this patent in a reexamination initiated by Nokia, which included the best prior art references Nokia could find."
The fact that all 20 claims of this patent survived reexamination by the patent office means that this patent enjoys an even stronger presumption of validity than a patent that hasn't yet proven its ability to withstand such scrutiny.
The clarity argument that Apple makes is also very important. Judges are rarely programmers, and jury members tend to struggle even more with those technical issues. When a patent is crystal clear, it's also a more predictable winner than technically more complex patents, such as the virtual machine patents that Oracle asserts against Google.
Claim construction -- meaning that the court has to decide on how to interpret the key terms that appear in the language of the asserted patent claims -- is always a big issue. But for this patent it doesn't even appear to be necessary because it speaks for itself:
"In view of the easily understood and straightforward language of the claims of the '381 patent, neither party [meaning: neither Apple nor Nokia] asked the Delaware [federal district] court to construe any of its terms during the May 15, 2011 [claim construction] hearing.
It also seems that prior art is a tough call. Quite possibly Apple was the first company to come up with the idea for how to solve this awkwardness issue affecting scrolling operations on touch screens. From a policy point of view, I don't believe it's good for innovation and competition that such an idea (even though it was undoubtedly a brilliant one) can be patented at a general level -- the patent monopolizes the right to implement this kind of behavior as opposed to just one particular technical solution for doing this. But we're now talking about litigation, not politics. And in patent litigation, prior art is the most common basis for having patents declared invalid (or at least having their scope narrowed). This is what Apple writes about Nokia's attempts to take this patent down:
"On April 28, 2010, Nokia requested ex parte reexamination of all twenty claims of the '381 patent based on four prior art references, three of which were not cited in the original prosecution. [...] Nokia relied on the same prior art for its invalidity contentions in supplemental interrogatory responses that it provided six months later, in effect conceding that it had not been able to find any better prior art, despite a year of litigation. [...] The Patent Office subsequently found Nokia’s arguments unpersuasive and confirmed the patentability of all twenty claims."
Note that this doesn't mean the patent can never be invalidated. But unless someone finds prior art that even Nokia -- which has vast resources and had a strong incentive to fight this patent -- wasn't able to find, it's unlikely to happen.
Again, I'm just desribing the way things are. It's the law of the land. And this patent exists not only in the U.S. and Australia (the two countries in which Apple is already suing over this patent) but Apple also filed applications elsewhere, including in Europe. In order to have some preliminary protection prior to getting a European patent granted, Apple also obtained this German utility model on the invention, which is a kind of fast-track patent with limited examination and will lose relevance once Apple gets a "real" European patent granted. Even though this is clearly a software patent (since the only innovative element here is a matter of operating system functionality as opposed to new types of hardware components), patents of this category are issued by the European Patent Office all the time, and many of them are upheld by the courts. So this is a patent that Apple can assert against Android in several major markets.
With invalidation being a long shot (to say the least) and with infringement being easily proven, the only realistic way for an Android device maker to get a license from Apple is to have enough intellectual property that Apple will feel forced to enter into a cross-license. But even if Apple agreed to a partial cross-license, it would try very hard to keep touchscreen patents like this one excluded from any deal.
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Oh well, Hopewell: a company named Hopewell Culture & Design just filed one of those one-patent-against-many-defendants type of suits. The company -- about which Google hasn't indexed anything except for a few references to this patent suit -- holds a user interface patent and yesterday filed a complaint with the US District Court for the Eastern District of Texas, asserting it against 11 defendants: Apple, the top four Android device makers -- Motorola, Samsung (two different Samsung entities are named), HTC, LG --, Nokia, Adobe, Palm, Opera and Quickoffice.
The company seeks injunctive relief and monetary damages for what it claims to be infringements of US Patent No. 7,171,625 on "double-clicking a point-and-click user interface apparatus to enable a new interaction with content represented by an active visual display element". The application was filed on 18 June 2002 and assigned to Actify, a San Francisco-based software company specialized in computer-aided design (CAD). The nature of the relationship between Actify and Hopewell Culture & Design is unclear at this stage.
Having read the description of the patent and the infringement allegation against each of the defendants ("software allowing a user to double click or double tap a visual element representing interactive content and interact with a second version of the interactive content"), I wouldn't be surprised if the defendants managed to present prior art. By the time the application was filed (mid 2002), graphical user interfaces already provided functionality that one could consider similar to this technique. This suit may make unlikely bedfellows in terms of companies suing each other over patents (Apple has disputes with Nokia, HTC and Motorola going) but possibly deciding to cooperate to invalidate this patent asserted against all of them and so many others. Prior art is always a difficult question of law whether there was still some inventive step involved that justified the grant of a new patent. That's why most of the time I refrain from commenting on prior art questions at all unless they are raised in a substantiated form in official documents filed with courts.
The accused products are: Adobe Reader, iPhone, iPad, four Android-based HTC smartphones (Droid Eris, Droid Incredible, Hero, EVO), LG Envy Touch (this may mean the original LG enV Touch but could also include the announced, Android-based LG enV Touch 2), two Android-based Motorola phones (Droid and Droid X), two relatively new Nokia phones (N900 and N97), the Opera Mini browser for mobile devices, the Palm Pre, the Quickoffice Connect Mobile Suite software (available for several operating systems), and two Samsung phones (the Android-based Captivate and the Rogue, which runs proprietary Samsung software).
So the flood of mobile patent suits continues. I didn't even report on another suit filed on Tuesday: Wireless Recognition Technologies LLC sued Nokia and others (also in the Eastern District of Texas) over US Patent No. 7,856,474 on a "method and apparatus for identifying documents using a handheld device". In Nokia's case, the infringement allegation targets its Point & Find mobile application, which is an augmented reality browser, and while it appears to be an app as opposed to pre-installed software, the plaintiff broadly accuses any "Nokia's cellular phones capable of using Nokia's Point and Find mobile application". Yesterday I reported on Hybrid Audio LLC's suit against Apple, HTC and Dell, and the day before on a complaint filed by Alcatel-Lucent subsidiary Multimedia Patent Trust against Apple, LG, Canon and TiVo.
Of the four new mobile suits I've already reported on this week, the Multimedia Patent Trust case is probably going to be the most interesting one because there's a large and powerful organization behind it, the company has previously litigated against the MPEG world and its dog, and it asserts multiple patents. But I'll keep an eye on some "smaller" cases as well since any of them could have major implications further down the road, even if they may not appear frightening, much less shocking, at the outset.
If you'd like to be updated on the smartphone patent disputes and other intellectual property matters I cover, please subscribe to my RSS feed (in the right-hand column) and/or follow me on Twitter @FOSSpatents.
