German Judge Bans Androids for Swipe-Unlocking, Despite Prior Art
February 16, 2012 7:11 PM
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 (
) 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
a couple of patents
internationally on the swipe unlock:
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. (
) 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.
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 (
So a point of clarification. As pointed out by
, 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
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
an infringement trial. In Germany this proceeds via a separate track [
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
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)
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. (
), hoping to ban their phones for the same feature.
It appears a fix may prevent an injunction from taking hold. According to
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. (
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?
"Folks that want porn can buy an Android phone." -- Steve Jobs
Google is Now (Almost) the Proud Owner of Motorola After EU/U.S. Approval
February 14, 2012, 11:40 AM
Motorola Fails to Score the Hat Trick, Losing to Apple at Last in Germany
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Germany Bans Apple's iCloud; iPhone 4, iPad 2 Spared From Second Ban
February 3, 2012, 5:24 PM
Master of Unlocking: Apple Patents Swipe-to-Unlock Despite Prior Art
October 26, 2011, 3:27 PM
Steve Jobs: "I'm Going to Destroy Android, Because It's a Stolen Product"
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