Print 71 comment(s) - last by Cheesew1z69.. on Feb 20 at 8:22 AM

Apple looks to score a second ban on Samsung's Android smartphones, shortly

[Note: Invalidity proceeding is carried out in German court, so this ruling may be struck down.] 

Well, we guess it was bound to happen sooner or later -- a court has actually bought Apple, Inc.'s (AAPL) claim to have "invented" the swipe unlock -- and in fact banned a competitor's product based on it.

Not surprisingly, that court happened to be in Germany, which is basically the only European Union country that has bothered to humor Apple or its Android adversaries legal war.

Apple holds a couple of patents internationally on the swipe unlock:

Apple unlocking patent
Apple is the master of unlocking, having received two patents on the simple gesture.
[Image Source: Patently Apple/USPTO]

You can even see late Apple co-founder and CEO Steven P. Jobs bragging about the feature back in 2007:

But there's only one wee problem with Apple's patent and it's efforts to go "thermonuclear" on Android and "destroy it".  Apple lifted the feature from a competitor.  It did not invent swipe unlock.  It was not even the first to sell a product with swipe unlock.

Neonode Inc. (NEON) in 2005 launched a phone called the N1m, which had a virtually identical unlocking feature, albeit with a different graphic.  You dragged the lock and your phone unlocked.

Neonode n1m
Apple lifted the unlock feature from NeoNode. [Source: FOSS Patents]

Unfortunately for Motorola -- the victim of Apple's successful swipe unlocking suit -- Judge Dr. Peter Guntz was apparently clueless of Apple's legal trolling and the fact that swipe unlock was introduced two years before Apple ever filed for its patent (EP1964022).  

So a point of clarification.  As pointed out by Theoz, the judge was not obligated, nor allowed to look at Neonode's prior art, given that Apple did not list it on the patent.

That said, a December FossPatents blog asserts that the Judge indeed knew about the Dutch judge's decision to strike down the infringement claim, on grounds of prior art.

In the Netherlands, invalidity can be ruled during an infringement trial.  In Germany this proceeds via a separate track [source; PDF].

However, FossPatents reports that German judges can narrow or widen the scope of the patent, and further states that Judge Dr. Peter Guntz chose a broader interpretation for Apple, versus a colleague in a nearly-indentical claim against Samsung:

Mannheim is reluctant to stay patent lawsuits on the grounds of suspected obviousness of a patent over prior art, which would be useful to Apple in this case, but last week, at a hearing on an Apple lawsuit against Samsung, Mannheim-based Judge Andreas Voß appeared inclined to interpret the patent more narrowly than his Munich-based colleague today. Motorola and Samsung have different slide-to-unlock implementations (in fact, each company has at least three implementations all by itself), so the infringement analysis isn't directly comparable, but I heard both courts' views on how to interpret the patent claims and Munich's take is more inclusive.

Further, as the FossPatents blog points out, Judge Dr. Guntz could have ordered a stay on the patent trial, until the invalidity trial concluded.  While German courts are typically wary of doing this, given the Netherlands ruling and the clear-cut case for prior art, it would seem that this would be fair -- albeit unusual -- path to take.

But Judge Dr. Guntz did not do this.

Again, it's important to get the story precisely right, but in this case the accurate picture is actually worse for Judge Dr. Guntz than our initial impression that he simply did not know about the prior art.

The Judge knew about the prior art, yet purposefully chose not to apply either of the methods at his disposal -- either narrowing Apple's claim (not based on the prior art, mind you, but on the interpretation of the patent itself, as his colleague did) or staying the trial until the invalidity proceedings wrapped up.

In purposefully ruling against Motorola on a violation he knew to be likely invalid, it seems far more unproper and unjust than if his decision had been based on simple innocent ignorance.


And apparently he also didn't realize how silly it was to claim ownership of a gesture control that would take minutes for an experienced programmer to make.  NeoNode never bothered to patents its invention or sue anybody -- after all, it seemed so obvious. 


Neonode actually does own a patent on swipe-to-unlock, it just hasn't sued anybody -- yet.  I missed this during my initial search of Google Patents and the USPTO website, but a kind reader sent it my way.


For now two Motorola handsets are permanently banned in Germany.  And Apple is also suing Samsung Electronics Comp., Ltd. (KS:005930), hoping to ban their phones for the same feature.


It appears a fix may prevent an injunction from taking hold.  According to CIO Today, Motorola has a fix ready to roll out, which will replace the infringing feature. 

This should buy it the time it needs to invalidate/narrowed Apple's slide to unlock work, which will almost certainly be invalidated or narrowed, assuming the German court gives Motorola and the defendant in the other unlocking lawsuit, Samsung, a fair trial.


Motorola -- whose acquisition by Google Inc. (GOOG) was made official this week by the European Union -- is likely to appeal the Munich Regional Court's decision to the Düsseldorf Higher Regional Court.  If it loses -- and if Samsung looses -- Apple could be granted a local monopoly on smartphones, or at least force Android to drop a ubiquitous key feature most customers take for granted today.

The only good news for Motorola is that it's already scored a ban on the iCloud, and a ban on the iPad/iPhone that is set to resume soon too, after a brief stay.  The German court system banned Apple's products after Apple refused to pay Motorola for its 3G patents, claiming they were invalid.

What do you think?  Do you think the German justice made the right call?

Source: Foss Patents

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RE: Forgetting
By Theoz on 2/17/2012 12:43:21 PM , Rating: 2
If unsure, don't write a story bashing them for not considering art that they cannot consider because this was a lawsuit only related to infringement. Validity is a separate proceeding in Germany, so Motorola will still get its chance to invalidate the patent.

Failure to review the prior art in this case doesn't show anything. The judge is deciding one issue at this proceeding: are the claims that apple asserts infringed by the device? That's it. Moto will get its chance to invalidate at a later time. Research first, write second please.

RE: Forgetting
By testerguy on 2/17/12, Rating: -1
RE: Forgetting
By Cheesew1z69 on 2/17/2012 3:55:55 PM , Rating: 1
Oh look, it's Apple's bitch boy...

RE: Forgetting
By JasonMick on 2/17/2012 4:07:46 PM , Rating: 2
If unsure, don't write a story bashing them for not considering art that they cannot consider because this was a lawsuit only related to infringement. Validity is a separate proceeding in Germany, so Motorola will still get its chance to invalidate the patent.

Failure to review the prior art in this case doesn't show anything. The judge is deciding one issue at this proceeding: are the claims that apple asserts infringed by the device? That's it. Moto will get its chance to invalidate at a later time. Research first, write second please.

Did you not read anything I just wrote???

It doesn't matter if the judge could question the validity. They could have used common sense to determine that the scope of the Apple patent should be narrowed. German law ABSOLUTELY allows judges to rule on patent scope.

I know this for a fact.

If they were incompetent in terms of understanding the electronics industry, then they should not have been reviewing patents for it.

RE: Forgetting
By Theoz on 2/17/2012 4:34:15 PM , Rating: 2
I read all of it. You are very wrong.

I know this for a fact.

Try substantiating a fact for once. Any changes to patent scope come in the invalidity portion of the trial, not the infringement portion. It didn't take me long to find this fact substantiated by this presentation from a well known law firm:

See slide 9. The amended claim sets (claim narrowing) come in the invalidity portion of the suit, not the infringement portion. Likewise, see slide 11 wherein it is stated that claim construction is very broad. Also, note that "prior art can only be used for claim construction purposes, if this prior art has been discussed in the patent specification. " Therefore, if Apple didn't discuss the prior art in their patent, it can't be used in the infringement portion to rule on claim scope!

Again, you completely misreported this story due to a lack of research and general knowledge about the subject. I await the edits to the story to make it less misleading.

RE: Forgetting
By JasonMick on 2/17/2012 6:49:35 PM , Rating: 2
A Defendant may try to use any possible hint in the claim language
that the scope of protection is limited to a preferred embodiment
described in the patent specifiction.

First, thank you for the link, it was quite educational. You should be pleased, I have made some updates to the piece.

But based on my research, I think you missed two crucial points.

1. The Judge -- aware of the strong invalidity prospects -- could have narrowed Apple's patent scope. Yes, you are technically correct, prior art is not supposed to affect validity during the infringement portion. But according to FossPatents, the scope was narrowed in the Samsung case by a Judge, who Florian Mueller hints may have been influenced to do so by the Netherlands ruling:

2. Scope aside, the German judge also has the authority to offer a stay until the invalidity procedure complete. Again, despite knowledge of a strong invalidity prospect, he chose not to stay this trial and instead deliver a likely premature and punitive ruling on Motorola.

Again, the fact that he knew about this and chose to slap Motorola with a punitive ruling anyhow, is far worse. It takes this ruling from seeming like innocent ignorance to seeming like willful maliciousness.

Again, I may have missed the point about the validity, but you missed (or did not clearly state) that the German judge had these options -- particularly the very cut and dry #2 option.

In doing so, you paint the judge's decision in a rosier light, than it truly was in.

In reality it appears that the judge made a ruling he knew would hurt Motorola, and a ruling he knew was ultimately wrong (and would be invalidated).

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