Judge's Ruling Upholds Apple Patent, Could Jeopardize Android's Future in the U.S.
April 2, 2012 9:32 PM
Android phonemakers have essentially four possible routes to try to avoid a "doomsday" scenario
Thus far Apple, Inc. (
) 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,
, 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. (
) would be free to continue sales and continue to attack Apple with retaliatory litigation in hopes of
reaching a licensing truce
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
infamous "multi-touch patent"
The patent claims invention not of a particular narrow, precisely defined algorithm, but rather on an abstract description of
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 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 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
, "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'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:
Without multi-touch you might as well not sell a handset in the current market.
Without gesture detection heuristic multi-touch would be impossible to implement effectively
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. (
) and HTC Corp. (
) would likely soon follow.
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'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.
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]
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.
"When an individual makes a copy of a song for himself, I suppose we can say he stole a song." -- Sony BMG attorney Jennifer Pariser
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