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  (Source: badjonni via flickr)
Apparently #winning is not enough -- complaints could come back to bite Apple, provide ammo for Android rivals

Apple, Inc. (AAPL) supporters hailed Chicago, Illinois Seventh Circuit Court of Appeals  Judge Richard Posner's ruling as a landmark in the gadgetmaker's case against new Google Inc. (GOOG) almost-subsidiary (pending Chinese approval) and top Android phonemaker, Motorola Mobility.  

Not only did uphold most of Apple's claim construction regarding Apple's asserted intellectual property rights, U.S. Patent No. 7,479,949 -- the infamous "multi-touch patent" -- it also admonished Motorola's counterarguments.  Supporters said that the strong victory could clear the way for something even they weren't sure if they were comfortable with -- a complete ban of America's current top smartphone platform, Android.

So how did Apple respond to this wonderful legal gift that Judge Posner handed it?

Apparently "complained" would be the proper term.  Astoundingly Apple filed a motion challenging some aspects of the Judge's Claim Construction, which it felt might weaken its "thermonuclear" quest to destroy all of the top Android phonemakers' sales.

But much like Napoleon's bold invasion of Moscow, followed by a ruinous retreat, Apple may have made a fatal miscalculation in angering Judge Posner who once appeared to be on its side.  Judge Posner called Apple's filing "troubling" and writes [PDF]:

Apple presumably spent a nontrivial amount of time drafting its order, and now I have done the same in responding to it. Yet it seems that Apple brought about this expenditure of scarce resources without first making a careful reading of the page or so of my order against which this motion is launched. Such inconsiderate sloppiness is unprofessional and unacceptable.

Judge Posner
Judge Posner's tone with Apple shifted dramatically. [Image Source: Appellate Lawyers Assoc.]

Given Judge Posner's strong reputation in U.S. Federal legal circles, his criticism of Apple's legal staff as "unprofessional" is very "troubling" for the Cupertino gadgetmaker, to borrow his term.  That criticism goes well beyond his harshest words to Motorola's lawyers to date.

Again, it's somewhat baffling why Apple would turn around and burn itself on the eve of its greatest triumph in U.S. Federal Court.  However, some grateful Motorola lawyers are surely thanking the heavens for this inexplicable turn of events.

An important note is that Motorola started the lawsuits with an Oct. 2010 filing against Apple claiming infringement of 18 patents.  However, given that Apple had just filed a lawsuit against HTC Corp. (TPE:2498) and had admittedly threatened both Samsung Electronics Comp., Ltd. (KS:005930) and Motorola with litigation, it appears this may have been a "preemptive strike".  Sure enough, Apple sued Motorola later that month.  So far Apple has done better in the U.S., though Motorola did get several key patents invalidated.

A non-biased observer could argue that Apple started the lawsuit war with Android, but Samsung and Motorola escalated it with new suits, and a host of international filings.  Likewise, such an observer might point out that a piece of the culpability lies with Windows Phone maker Nokia Oyj. (HEL:NOK1V) who kicked off the lawsuit wars in 2009, suing Apple over 10 patents and filing a complaint with the U.S. International Trade Commission seeking to ban iPhone imports from their manufacturing location in China.  That ban request was the first of its kind and would be echoed in later ITC filings by Apple and its Android rivals.  Wikipedia maintains an excellent timeline of the lawsuit wars.

Source: SBNation

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From Judge Posner's response
By bodar on 4/4/2012 4:39:50 PM , Rating: 2
Only in the final passage of its motion does Apple make an argument that might not be talking past my order entirely: “The [next item and translation] commands also will be distinguished depending on the state of the underlying content. For example, in a photo album application, a horizontal swipe gesture will result in a transition to a different photo in a set of photos if the entire photo is shown on the display screen... But, if only a portion of the image is shown on the screen (in other words, the photo is sized to be bigger than the display screen), a swipe gesture is interpreted to move the photo in a horizontal, vertical, or two-dimensional direction.”

I still don't get how Apple can patent input interpretation (multi-touch or otherwise) within an application. Can anyone explain this?

RE: From Judge Posner's response
By fic2 on 4/4/2012 5:21:05 PM , Rating: 3
Broken/brain dead U.S. patent office.

RE: From Judge Posner's response
By Theoz on 4/4/2012 5:42:48 PM , Rating: 5
I am likely responding to one of the many anti-IP zealots on this site, but input interpretation clearly falls under 35 USC 101 which controls which subject matter is patentable and which is not.
Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefore, subject to the conditions and requirements of this title.

I would consider this to be a method or a machine (touch screen, processor, memory, etc.) for carrying out the claimed algorithm. Hence this is clearly patentable subject matter. Presumably no relevant prior art (see 35 USC 102) was in front of the patent office and therefore they allowed the claim since they determined that the claim was novel and not obvious to a person having ordinary skill in the art at the time the patent application was filed (September 6, 2006). Everything looks obvious in hindsight, that's why the question is whether it was obvious on September 6, 2006 given the prior art.

RE: From Judge Posner's response
By Ringold on 4/4/2012 10:33:45 PM , Rating: 2
Very informative post, thanks. (Could've voted it up, but that doesn't show appreciation as much when a troll comes by 10 sec later and votes a good post down)

Like it or not, according to what you said and the date involved (I dont recall such phones in 2006, but would have to search around) I can see how the patent might stand, though I think it might be better for Apple in an anti-trust sense to license the patent to Android makers than try to shut them down entirely.

RE: From Judge Posner's response
By Iaiken on 4/5/2012 10:01:20 AM , Rating: 5
The problem is one that I have pointed out time and again.

There is a reason that the Canadian patent office told Apple to "go fly a kite".

"Multi-touch" and it's surrounding heuristics were invented at the University of Toronto in the 1980's. It was further expanded upon by researchers. Everything you see in the way that you interact with smart phones and tablets, you can find in these white papers. Apple didn't invent squat, they just patented/implemented someone else's invention and then claimed they changed the world.

Unfortunately, with the patent office changing from "first to invent" to "first to file", this prior art is simply irrelevant in the US. The judge in this case had reviewed these documents, but discarded them from evidence because the researchers never filed a patent. What is ironic is that the researchers never filed patents at the time because to them it was obvious technology at the time, literally dozens of major schools of computing were contributing to these papers every year.

RE: From Judge Posner's response
By Theoz on 4/5/12, Rating: 0
By prophet001 on 4/5/2012 11:45:43 AM , Rating: 3

you don't even try to dispute that apple in fact did not invent the multi-touch interface.

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

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