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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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RE: If I have to get a Windows Phone,
By Paj on 4/3/2012 7:20:41 AM , Rating: 4
The software patent arena is pretty flawed by allowing such broad patents in the first place. As has been proven, Apple doesnt really invent as much as it just buys up.

Im no lawyer, but if this goes through, I'm pretty sure Europe isnt going to like it. The EU takes a pretty dim view of these sort of tactics, treating them as the anticompetitive behaviour they clearly are (re: Microsoft, Intel). Apple could find themselves bearing the brunt of a massive fine or EU restrictions if Android is banned in the US.

Even if, in multiple courts around the world, it is found that the patents are in violation of something, refusing to license the technology that they themselves bought from someone else in the first place strikes me as particularly pig-headed.

RE: If I have to get a Windows Phone,
By Tony Swash on 4/3/2012 12:41:26 PM , Rating: 1
Even if, in multiple courts around the world, it is found that the patents are in violation of something, refusing to license the technology that they themselves bought from someone else in the first place strikes me as particularly pig-headed.

You mean like Google's search algorithms it got from Stanford but hasn't licensed to anyone else?

By sprockkets on 4/3/2012 2:47:38 PM , Rating: 5
You mean *that patent* that Google has never sued anyone over, and that the bulk of their tech is protected by trade secret?

RE: If I have to get a Windows Phone,
By testerguy on 4/3/2012 1:27:15 PM , Rating: 2
The software patent arena is pretty flawed by allowing such broad patents in the first place. As has been proven, Apple doesnt really invent as much as it just buys up.

The question of who 'invented' it is irrelevant. You can buy patents, just like you can buy the companies who invent things. For all intents and purposes they become part of Apple once they are purchased.

The bottom line is that Apple was the first smartphone manufacturer to see the potential for multi-touch gestures, and of course when they did come up with this they patented the hell out of it, to protect their idea - exactly as any other company would have done. Now there are countless replications which all clearly share the same DNA as the first iPhone, so clearly Apple has a legitimate case.

You should also take Jasons articles with a pinch of salt, his bias exudes throughout every article and clearly aims to mislead people.

RE: If I have to get a Windows Phone,
By leviathan05 on 4/4/2012 9:01:49 AM , Rating: 2
to protect their idea

The problem with this is that patents aren't supposed to protect ideas, but the implementation of those ideas. Most software patents shouldn't exist, as the actual code written in a program would be copyrighted, not patented.

By The Raven on 4/5/2012 3:15:43 PM , Rating: 2
Well patent or not it should apply to the code and not the IDEA. My understanding (biz law 101) is that you cannot patent an "idea". This means that you have to show the very workings of it and not just a vague idea. And that is what is protected. Not the idea. (like prior art)

For example I cannot patent mind control for a phone. I have schematics of how it will work. And not just a picture with waves floating toward a phone lol. This is what I have seen of Apple's (and other tech companies for that matter) and I don't understand how such crap has been allowed to pass (efficient gov't I suppose).

Like wise I cannot actually make a mind control phone and then just tell everyone else that was working on the same idea (with different methods, or code in this case) that they can't do the same thing.

Again I am no lawyer, but this is not right whether it is legal or not.

RE: If I have to get a Windows Phone,
By TSS on 4/3/2012 6:12:16 PM , Rating: 2
Oh yes maybe they'll even get the biggest fine in history, as much as $2 billion! That'll certainly hurt the $100 billion cash they have lying around.

I wonder what the retaliation from apple will be if they actually get that monopoly on the standards commission.

I'm afraid the only thing that'll actually hurt apple at this point is a massive failure of the new gadget. I think apple won't prove as resiliant when their stockprice takes a dive.

"Death Is Very Likely The Single Best Invention Of Life" -- Steve Jobs

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