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Android phonemakers have essentially four possible routes to try to avoid a "doomsday" scenario

Thus far Apple, Inc. (AAPL) has seen its patents narrowed or invalidated in U.S. court.  At best it's cobbled together a handful of UI patents like gallery page flipping, kinetic scrolling, swipe-to-unlock, and a bounce back animation.  Together, these patents could make Android a bit less pleasant, but it would be far from “game over” as Google Inc. (GOOG) would be free to continue sales and continue to attack Apple with retaliatory litigation in hopes of reaching a licensing truce, while pursuing workarounds.

I. Monopoly is Almost in Apple's Grasp

But Apple has one strong hope of achieving its ultimate objective -- killing its top competitor and granting itself control over the U.S. smartphone market.  That patent is U.S. Patent No. 7,479,949, Apple's infamous "multi-touch patent".

The patent claims invention not of a particular narrow, precisely defined algorithm, but rather on an abstract description of all algorithms relating to the use of multi-touch displays.  Basically, the patent covers how when your fingers are moving in semi-linear directions, the idea of removing the wobble in order to get a usable gesture.

Virtually every Android device sold today uses multi-touch.  Without a method of allowing for accurate touch these devices would be rendered useless.  And that's precisely what Apple is hoping for.

Apple gavel
Apple scored a demoralizing victory over Android. [Image Source: ArsTechnica]

After scoring an early victory in January on the patent, Apple scored another win in a more in-depth judicial analysis of the claims in Apple's patent, and Google subsidiary/Android phonemaker Motorola Mobility's (the named defendant) complaints about the patent.

The presiding Chicago, Illinois Seventh Circuit Court of Appeals judge was Judge Richard Posner, a respected legal veteran and University of Chicago law instructor.  In a March 29 ruling, he defended Apple's interpretation of the claims language in the patent as mostly valid and chastised Motorola Mobility's lawyers for providing invalid and repetitive arguments.

Responding to Motorola Mobility's insistence that the patent should only be valid for the 27 degree contact angle (error tolerance) discussed in the example implementation, he chastised, "I reject Motorola's argument (this is the third time they've made it and the third time I reject it) that the structure must be limited to the 27-degree angle used as an example by the specification."

The decision clears the way for a potential ban on all Motorola Android smartphone sales on infringement grounds.

II. Ubiquitous Patent Won't Expire Until 2028

Apple's attorneys cheer the news, writing, "[H]aving identified the problems associated with imprecise finger gestures, solved them, and successfully incorporated them into a commercial product, Apple should be entitled to the fruits of its innovation via broad patent protection, and the public is benefited by the disclosure of Apple’s invention."

The patent will last through 2028, so by "public is benefited" Apple means that it hopes that the public will be "benefited" by a complete ban on Android for over a decade and a half.

Apple iPhone 4S
Apple's lawyers hope to "benefit" the public with an Android ban until 2028.
[Image Source: Carlos Rull]

Such an event would seem astounding, but is not impossible considering the following:
  1. Without multi-touch you might as well not sell a handset in the current market.
  2. Without gesture detection heuristic multi-touch would be impossible to implement effectively
  3. The validation of Apple's claims language clears the way for a preliminary injunction on all Motorola multi-touch handsets.  Bans on Samsung Electronics Comp., Ltd. (KS:005930) and HTC Corp. (TPE:2498) would likely soon follow.
  4. Apple has not indicated it is willing to license this patent.
This latest is outcome is largely a byproduct of a U.S. Patent and Trademark Office that allows overly ambiguous nebulous software descriptions to be patented and then a judicial system which, in turn, allows them to be enforced with destructive, anti-competitive consequences.

But this incident is the most eye-popping example yet of the dangers of the current American intellectual property system as it has a strong possibility of radically transforming a vast market whose devices U.S. consumers use every day.

III. How Did We Get Here?

The wily Cupertino giant, the world's most profitable electronics company began its bid in early 2005.  At the time Apple was enjoying a renaissance with its best-selling iPod, but it was curious if customers would buy a reimagined Apple Newton in a new ultra-slim form factor.  In order to differentiate its product, Apple bought FingerWorks, a research and development company specializing in multi-touch gestures.

At that point Apple began patenting multi-touch implementation details at a frantic pace.  The only remaining question was what kind of hardware to pair the algorithms with.

The answer came in 2006 when a handful of companies -- mostly Taiwanese display startups -- displayed capacitive multi-touch displays at the 2006 Consumer Electronics Show (CES) and other trade shows.  Apple moved quickly to enter agreements to snatch up all the supply on the new displays.

Apple iPhone
Apple's crafty moves positioned it to potentially score its biggest anti-competitive win yet.
[Image Source: David Paul Morris/Getty Images]

This allowed it to enjoy a virtually untouched monopoly on multi-touch devices a year later, when its iPhone launched.  While Apple's invention came largely second-hand via FingerWorks and the Taiwanese manufacturers, it appeared that Apple had "invented" multi-touch.

IV. Android Phonemakers Have Four Potential Routes to Avoid a Complete Ban 

Now the clever strategy that ensured its risky smartphone project instant commercial acclaim and success could pay a second dividend in the form of an anti-competitive gift from the U.S. judicial system.

If Apple does score a complete sales ban, it has complete control over whether it opts to allow licensing at premium rates, or simply to allow Android U.S. sales to die.  Either way Android phonemakers' only recourse would be to win a narrowing of the patent in similar Samsung/HTC cases, take the case to a higher federal appeals court in an effort to override Judge Posner's technical analysis, try to find enough prior art to convince the USPTO to invalidate the broad patent, or else win an equally damaging ruling against Apple, forcing licensing.

Game over
Is this game over for Android?  Don't count Google and its allies out yet, they have several viable options to fight a complete sales ban. [Image Source: The Dark Furie]

If Google, et al. cannot find a way to accomplish one of those four reversal routes, Android is essentially soon to be dead in the U.S., barring some unforeseen circumstance.  And if Android sales vanish in the U.S., the platform's global prospects are in jeopardy as well.

It sounds unbelievable, but Apple's ace could spell the virtual end of Android, currently the smartphone market's market share leader.  Of course, on the flip side of the Android coalition has a lot of fight left in it and will likely look to exhaust each of the above options to avoid a radical market changing event in the U.S.

Source: FOSS Patents

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Apple has a point
By Stan11003 on 4/3/2012 12:40:26 AM , Rating: -1
I'm usually not for patent trolling but lets be fair. Apple came out with a slim multi touch smart phone that looked like nothing else on the market at the time. They invested millions. Folks forget that 10 years ago Apple was not a rich company they were on very shaky ground. They took some chances and developed this tech. Why should Google get to use it for free? What if Apple made there own search engine and used Google patents would that be fair?

RE: Apple has a point
By Scootie on 4/3/2012 2:10:37 AM , Rating: 2
How many times must be told here that the iphone was not the first true multitouch phone. Look up on the LG Prada please ...

RE: Apple has a point
By Granseth on 4/3/2012 4:20:30 AM , Rating: 2
If you tell somebody the same thing too many times, they will start believing it.

RE: Apple has a point
By testerguy on 4/3/2012 1:43:33 PM , Rating: 1
Did the LG Prada have this same touch screen algorithm which is the focus of the patent in question implemented? No.

Don't confuse the patent being discussed with being something other than one it is. There are different types of multi-touch, some are better than others. The iPhone multi-touch was widely regarded at the time (and now) to be vastly superior to the LG Prada attempt, and it is their ALGORITHMS, which they created in conjunction with FingerWorks, which makes their touch screen better. I see no reason why they shouldn't be able to protect their innovation.

RE: Apple has a point
By Reclaimer77 on 4/3/2012 7:18:16 PM , Rating: 2
Of course this is an invalid patent. But let's table that and say Apple gets their way, okay. Apple would then fall under anti-trust violations for muscling their way into a monopoly and leaving nobody with viable options if they got their way.

WP7 and RIM are NOT viable.

But frankly this discussion is unrealistic. Android isn't going away. The worst that can happen is they pay royalties to Apple until this absurd patent gets invalidated.

RE: Apple has a point
By ajcarroll on 4/5/2012 3:01:32 PM , Rating: 2
Scootie, I'm not disputing your point, but LG Prada's a very poor counter example.

For starters it's OS was NOT even gesture based, let alone multitouch. It didn't have any nice features such as scrolling by gliding your finger up and down on the viewport portion of a document - instead it rendered scroll bars in the margins and you tapped on the scroll bar to scroll etc.

I think it's a great counter example to the trade dress arguments about the broad look of the iPhone - it physically looked very similar to the iPhone. But the similarities ended with visual appearance. It's OS itself was not even remotely "ahead of the pack" in terms of a touch OS.

It in now way lead the way for android or android.

It had a cut-down version of Flash as it's UI - ie. built in apps were written in flash - but the API's didn't expose any fancy gesture inputs in any way.

It's big features were email and messaging, rather than the web.

It had decent support for rendering attachments to emails including docs and images and could play MP3s.

Although it had 2G connectivity it didn't support WiFi.
I'm pretty sure that out of the box it didn't even have a web browser - if it did it was rudimentary. (Someone else may know the answer to this).

Although its UI was based on Flash, it didn't have features such as a browser that supported flash.

It was broadly a touch based feature phone with email.

RE: Apple has a point
By paulglindon on 4/3/12, Rating: 0
RE: Apple has a point
By paulglindon on 4/3/2012 2:22:37 AM , Rating: 1
Whoa now... thinking reasonably is frowned upon when it come to anything Apple. ;-)

If anything this will make Google have to actually innovate their own technology instead of riding in the coat tails of others, like Oracle. Somewhere along the line they figured if they gave away android they could take whatever they wanted from other companies and sidestep the system.

RE: Apple has a point
By paulglindon on 4/3/12, Rating: 0
RE: Apple has a point
By Iuconnu on 4/3/2012 6:59:28 AM , Rating: 1
Are you nuts?

Apple has once again patented something incredibly obvious. It might as well be called "drawing a line and interpreting it as straight even if it is only nearly straight".

They should fine the people at the trademark office for every patent they approved that gets invalidated. Unless there is some kind of disincentive (other than common sense, cause that seems in short supply), this kind of lunacy wont stop.

RE: Apple has a point
By testerguy on 4/3/2012 1:46:19 PM , Rating: 1
So many idiots saying how 'obvious' patents are after the fact. If they were so obvious, why had nobody else even implemented them before, let alone patented them.

If the patents were 'obvious' in the eyes of the law (the opinion that matters) - the patent would be invalidated. Clearly that didn't happen - so what does that tell you?

It tells you that the legal world doesn't just run around declaring innovations 'obvious' just because they later go on to be widely implemented because they are so powerful.

RE: Apple has a point
By Ziggizag on 4/5/2012 6:16:01 PM , Rating: 2
Do you remember Tom Cruise and Minority Report? That was multitouch device shown. A few years later bloody Apple bought Finger Works and patented this idea. Shame on Apple and shame on American patent system what is cancer for technology today!

"Nowadays, security guys break the Mac every single day. Every single day, they come out with a total exploit, your machine can be taken over totally. I dare anybody to do that once a month on the Windows machine." -- Bill Gates

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