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"Obvious" patents should never have been granted, given prior art

Apple, Inc.'s (AAPL) international quest to kill Android, not by competition, but by lawsuits hit a roadblock in the United Kingdom when a Judge ruled Apple's patents to swipe-to-unlock patents to be invalid due to obviousness and prior art.

I. Neonode Invented Swipe to Unlock, Not Apple

The judge wrote in his decision that HTC Corp.'s (TPE:2498) four targeted Android handsets were not in infringement of Apple's patents on swipe-to-unlock as those patents never should have been granted in the first place.

The ruling comes in a London lawsuit brought by Apple against HTC.  The ruling is a dangerous for Apple as it threatens to invalidate previous wins over Samsung Electronics Comp., Ltd.'s (KSC:005930) and others in Germany and the Netherlands, which forced the Android device-makers to modify their products.

His decision echoes my own analysis remarkably closely, citing technology from Neonode Inc. (NEON), who included slide to unlock on an icon in its patented July 2004 n1m smartphone:

Similar prior art referenced by HTC convinced the judge that Apple had habitually trolled the patent waters, patenting technology that other companies had already brought to market at the time of its filings.  Two other key software patents were also found to be invalid due to obviousness and/or prior art.

The results are important, but not terribly surprising.

After all late Apple CEO and co-founder Steven P. Jobs famously brazenly bragged of his company's lust for stealing others' work, "Picasso had a saying - 'Good artists copy, great artists steal.' And we have always been shameless about stealing great ideas."


II. Bye, Bye Apple Patents, Bye, Bye Lawsuits 

The decision decimates in the EU much of the patent stable Apple has tried to leverage to bully Android smartphone makers in the U.S. and EU alike.  In total the judge invalidated three EU Apple patents:
  • EP1168859 (B1) "Portable radio communication apparatus using different alphabets" (a multilingual keyboard patent)
The judge was particularly taken by the abundant evidence of invalidity of the slide to unlock patent.  The Neonode n1m in 2004 displayed a padlock icon with the words  "right sweep to unlock".  Yet astonishingly an Apple patent filed over a year later was granted.  Apple lawyers would later argue that the inclusion of a capacitive touch screen (the n1m used resistive touch) to detect the swipe more accurately and a different icon were sufficient to seize broad ownership of all swipe to unlock on touch devices.

Unlocking the iPhoneUnlock n1m
[Image Source: YouTube]

The British judge blasted that line of thinking calling the inclusion of a slider "obvious" and saying that the advances in touch detection did not call for a repatenting of the same technology.

Apple issued a statement to the BBC, "We think competition is healthy, but competitors should create their own original technology, not steal ours."

But according to the British judge, it was Apple who stole others' work, not the other way around.  Apple refused comment on whether it considered it an acceptable practice to steal others' work, a practice it has repeatedly condemned others for supposedly doing.

HTC was ecstatic, commenting, "HTC is pleased with the ruling, which provides further confirmation that Apple's claims against HTC are without merit. We remain disappointed that Apple continues to favour competition in the courtroom over competition in the marketplace."

A single Apple patent -- EP2059868  (A2) -- the "bounce animation" patent survived, but the British judge narrowed its scope saying that that a somewhat similar animation on some of HTC's smartphones was sufficiently different that it was not in violation.

Android Gingerbread Gallery App
Browser App Gingerbread
Bounce animations on an HTC EVO running Android 2.3 "Gingerbread"

While the ruling is devastating to Apple's EU lawsuit campaign, it can at least seek solace in the fact that it has banned Samsung Galaxy Tab 10.1 tablet and Galaxy Nexus smartphone in the U.S.

III. Editorial: U.S. Invalidation is Coming Soon to a Courtroom Near You

Andrew Alton, a lawyer at UK firm Urquhart-Dykes and Lord -- a firm which used to work for Apple -- comments, "National patent laws thematically are very similar, but can be applied very differently.  Not only are the tests different but also the evidence that can be introduced in different courts varies. If the Neonode wasn't released in the US it might not be able to be cited there.  So the fact that Apple has lost this particular patent battle in the UK shouldn't mean it should be seen to have lost the global war."

Indeed, while the EU court justly found that Apple has received an invalid patent on a technology which its competitors were selling years before, U.S. patent law may be structured in such a way in which courts allow it to ban would-be competitors on the grounds of technology that had been released years before overseas, assuming those competitors did not release devices to the U.S. market or file for a U.S. patent.

Of course, I would disagree with Apple's lawyer's assessment, at least on the issue of the swipe to unlock, given that Neonode did patent its technology in the U.S.  Simply take a gander at Fig. 11 and Fig. 12 (pg. 5) in U.S. Patent No. 8,095,879 -- a "User interface for mobile handheld computer unit":
Neonode patent
There's swipe-to-unlock, the same technology Apple reworded and repatented, effectively "stealing" (as Apple would say) Neonode's novel idea and claiming it for its own.

I correctly predicted the EU invalidation, and I would expect the U.S. court system, despite the Android OEMs less-than-stellar legal representation and Apple's great level of influence in the Californian court system, will eventually come around to reason and invalidate this patent.

After all, the U.S. court system has to maintain some semblance of competence and non-biased behavior.

Then again, I don't expect Apple to give up without a fight.  After all, Apple has been badly beaten by Android in market share.  Apple attorney Josh Krevitt sums up his company's plight, remarking, "Samsung is always one step ahead, launching another product and another product."

Apple isn't launching product as fast as it used to.  Since the departure of founder and visionary Steven P. Jobs, it saw its iPhone 4S launch slip to October 2011.  Now hopes that Apple would "catch up" with a July launch are all but lost.  To make matters worse, Apple'shomely iOS 6 was left "playing RIM" to a the slick, stylish Android 4.1 Jelly Bean, unveiled at last week's Google I/O developers event.  Word has it that Jelly Bean's built in search even beats Siri in accuracy -- and Google supports many features absent in iOS, such as offline dictation.  And that's not to mention Windows Phone 8 who also makes iOS 6 look like a 2007-era dead-end.

Apple left behind
iOS, left behind: iOS 1.0 (top left), iOS 6.0 (top right);
Android 1.0 (bottom left, Android 4.1 (bottom right); Windows Phone 8 (far right)

As HTC said in its comment, Apple, despite virtually standing still interface-wise hopes to compensate by courtroom thuggery.  Unfortunately for it, much of its technology appears to be invalid and borrowed (or "stolen" to use Apple's own terminology).

Source: BBC

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RE: Schizophrenic
By retrospooty on 7/6/2012 8:21:35 AM , Rating: 4
"What's hard to stomach however are those that, all evidence to the contrary, insist even though they know it's not true, that Google didn't copy Android when it reengineered it's OS following the success of the iPhone"

Yet it's perfectly OK for Apple to have reengineered it's OS following the success of the Treo and Blackberry. Apple stole so much from those products. They really only added a multitouch screen and UI. Yes it was well done, but a blatant ripoff. Why is one OK and not the other?

RE: Schizophrenic
By Tony Swash on 7/6/12, Rating: -1
RE: Schizophrenic
By retrospooty on 7/6/2012 11:45:53 AM , Rating: 3
"which followed the success of the Palm PDA which in turn was built on the back of the Apple Newton"

Which was a direct ripoff of the psion and you know it.

What is your point exactly? That it's OK for Apple to copy, but not OK for others?

My point is the opposite. All companies copy each other, they take aspects that are working and make products based on that. If it werent normal and accepted, and totally legal, then Ford would be the only car company, because all others copy the manufacturing process Ford invented in the early 20th century.

Apple copied psion, and improved it with newton. Palm/Handspring copied Apple and improved it with phone/internet capabilities to become the Treo. Apple copied Palm and added a slick multitouch UI. I would argue that adding phone/internet was FAR more functionally responsible for today's smartphones than the UI that Apple added. Apple didnt add anything that couldnt already be done in 2007, in fact the 1st iPhone had less capabilities than a Treo of the day. What Apple did was make it a fun device to use and make it appealing to the masses. That was awesome, and we all owe Apple a thanks you for that, but doesnt allow them free reign to act as if they envented the entire smartphone genre. They didnt, they just copied as they always have and all companies do. Only with an extreme bias could anyone see Apple copying as art, and others copying as infringement. Copying is copying and its not art, nor infringement its called "business"

If you could throw some ice water on your Apple hard on you would see that clearly.

RE: Schizophrenic
By Tony Swash on 7/6/12, Rating: -1
RE: Schizophrenic
By themaster08 on 7/6/2012 1:06:02 PM , Rating: 5
Nice way to cherry pick to suit your argument. You do realise that Psion made many more devices than just the Psion Organiser, right?

Go immediately to an optician and get some specs - you need them.
Rich coming from the selective eyesight of yourself.

RE: Schizophrenic
By retrospooty on 7/6/2012 1:49:35 PM , Rating: 2
"A Psion. Tiny screen, no touch interface on screen, hardware keyboard"

Like I said " Apple copied psion, and improved it with newton . Palm/Handspring copied Apple and improved it with phone/internet capabilities to become the Treo. Apple copied Palm and added a slick multitouch UI."

You havent added anything to the debate, nor have you answered the obvious question as to why its OK for Apple to copy and not for others. Still waiting.

"And boy have we patented it!" -- Steve Jobs, Macworld 2007

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