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Pictures of the 2004 iPad prototype also surface is court filings

Apple, Inc. (AAPL) is at the center of nearly two-thirds of patent suits in the mobile industry.  The company has been targeted by trolls due to its profitability, but it has also used its large portfolio of questionable software patents to try to preserve that profitability, playing aggressor and stifling would be competitors.

I. USPTO: Feeding the Trolls

This week inspectors at the U.S. Patent and Trademark Office (USPTO) granted Apple two new patents that push the bounds of reason and represent, once again, the vast disconnect between the nation's intellectual property office and any sort of technical competence.

The first patent covers making an on-screen graphical element, disappear, more or less.  Brand new U.S. Patent No. 8,223,134 claims invention of using "a predetermined condition" to determine when "display of a vertical bar is ceased".

Apple scrolling
Apple has patented making a scrolling icon disappear. [Image Source: The Verge]

Even in a narrow context, it is somewhat baffling how making a graphic disappear when some program conditions are met is patentable.

Apple had already patented making a scrolling list accelerate or slow down.  That technology is described by U.S. Patent No. 7,479,949, which was filed in April 2008 and granted in Jan. 2009.

It has been noted [PDF] by intellectual property expert Judge Richard A. Posner that the claim construction in Apple's past scrolling patents is quite broad.  Some have misinterpreted this as an assertion that the patent was valid.  In fact, Judge Posner feels that most software patents are invalid -- he was simply noting that Apple lawyers are right -- the patents being granted by the USPTO are purposefully worded to be alarmingly broad.

Yet another example of Apple's bizarrely broad patents and the USPTO's baffling insistence on approving them comes from U.S. Patent No. 8,223,134 -- also granted this week.

Patent '134 describes the invention of "displaying electronic lists and documents".  Granted, Apple presents this "invention" in a mobile context, and throws in multi-touch. But essentially it has patented in rather broad and ambiguous language displaying a list on a smartphone.

Not only is this "invention" not an invention at all due to obviousness, it's more than likely invalid due to prior art.

II. Lax Reviews Waste Taxpayer Money and Hurt Competition

The USPTO's willingness to embrace Apple's legal trolling creates two crucial problems for the U.S.

First, taxpayers must see their money wasted on paying Judges and juries to deal with Apple's slew of lawsuits and subsequent appeals against its competitors.  Second, if Apple can find just one sympathetic court, it can use its patent horde to ban its competitors from the market, in an attempt to grant itself a government-enforced monopoly.

Samsung Galaxy Tab 10.1
Apple successfully banned the Samsung Galaxy Tab 10.1 using similar patents. 
[Images Source: 9to5Google]

This was showcased in Apple's case against Samsung Electronics Comp., Ltd. (KSC:005930) in U.S. District Court for the Northern District of California (San Jose/San Francisco).  In one of its court motions Apple sought to ban the Galaxy Tab 10.1 on the grounds that it infringed on its patented design.  Judge Lucy Koh rejected this notion, saying Apple's design patent -- U.S. Design Patent D504,889 -- was likely invalid due to prior art (and the fact that it looked neither like an iPad nor a Galaxy Tab 10.1).  But the U.S. Court of Appeals for the Federal Circuit heard Apple's appeal of that ruling and decided the design patent was valid.  The end result was a ban on the competitor's tablet.

Likewise, in another case Judge Koh agreed to tentatively ban the smartphone on the grounds of several software patents similar to be above-granted ones.

While those patents may eventually be invalidated, it cannot be denied that Apple has gained a key anti-competitive advantage by gaming the system.

III. iPad Prototype Images Surface

Speaking of the Galaxy Tab case, remember these images, appearing in the design patent:

Apple D'889 patent
Apple's D'889 patent [Image Source: Google Patents]

Well the photographic model of those sketches has aired, courtesy of documents found in Apple's legal filings.  The documents offer the world's first glimpse at the 2004-era iPad.

iPad PrototypeiPad prototypeiPad prototype
[Image Source: Network World]

The prototype looks just like the design patent's drawings -- and not much like the iPad.  The bezel size is different, the case is bulky, and there are no buttons.

Again, here we see how Apple has managed to get a single court to buy into its theory that it should be granted a broad monopoly by a single highly questionable, and, at the very least, very narrow patent.

Sources: USPTO [1], [2], Network World



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This article is over a month old, voting and posting comments is disabled

By JasonMick (blog) on 7/18/2012 5:24:21 PM , Rating: 5
quote:
This makes absolutely no sense. More proof that you have absolutely no clue what you are writing about. Obvious = not inventive = invalid. Obviousness must be demonstrated by the prior art.
This just shows how clueless YOU are on U.S. patent law, my friend.

Let me explain.

U.S. Patent Law Pt. II, Chpt. 10, Sec. 102
quote:
A person shall be entitled to a patent unless-

(a) the invention was known or used by others in this country
...
(f) he did not himself invent the subject matter sought to be patented, or


The Supreme Court recently interpreted these clauses as:
quote:
Laws of nature, natural phenomena and abstract ideas are not patentable.

http://www.supremecourt.gov/opinions/11pdf/10-1150...

In other words, yes there are some ideas that are too "obvious" to patent -- specifically, abstract (ambiguous) ideas, and natural phenomenon. I would argue this meets the criteria of an "abstract idea" quite, concisely.

And as I said, there's also prior art to consider.
quote:
And by prior art I mean prior art before the priority date. Not like in the last article where you attempt to argue that the universal search invention is not novel by using Windows XP from October 2001 while failing to realize that the Apple patent had priority all the way back to January 5, 2000. In other words, the prior art you mentioned in your article was not, in fact, prior art.
Microsoft would merely have to publish a document that they were working on unified search before Apple.

And again, I would argue unified search is an abstract idea and is inherently non-patentable (see ruling No. 10–1150).

But even if you were going to debate that:
a) Microsoft could almost surely produce a pre-2000 document showing they were working on unified search.
b) Unified search was built into Veronica search engine, which used the Gopher protocol and was developed in the late 1980s and early 1990s, coming out in 1992.

So where's your snarky response now, troll?


RE: Another Day Another Clueless Patent Article
By Theoz on 7/18/12, Rating: -1
By JasonMick (blog) on 7/18/2012 6:21:53 PM , Rating: 2
quote:
First of all, you are pointing to the wrong statute. It's 35 USC 101 that talks about patentable subject matter, not 102. Did you even glance at the supreme court case? Read the very first line of the opinion. You're looking at the wrong statute (35 USC 102 discusses novelty and what is prior art). Who's clueless?
Still you.

You're a bit confused.

Sec. 101 only contains a basic definition of what's patentable.

Sec. 102 makes Sec. 101 more explicit by spelling out what conditions disqualify something that might seem like an invention per Sec. 101. Hence all of these kinds of cases first mention Sec. 101, then move on to discuss quotations from Sec. 102, when discussing disqualification.

For another example please read Parker v. Flock
http://supreme.justia.com/cases/federal/us/437/584...

If you read Diamond v. Diehr
http://caselaw.lp.findlaw.com/scripts/getcase.pl?c...
...or Mayo Labs v. Prometheus, both cases clearly state that novelty is spelled out in section 102 and both rulings quote and discuss section 102. I'm guessing you didn't get past the first page on those docs though...
quote:
Second, that isn't a recent interpretation, that goes back a long time. Again, second paragraph of the Supreme Court Opinion citing cases from 1841 and 1854.
Yes, and the concept of patenting abstract ideas has been debate in court multiple times.
quote:
Third, obviousness is 35 USC 103 and has nothing to do with patentable subject matter.
As I said in my original post, I was using the word "obvious" in a colloquial sense (as in "non-novel") in the article. If I meant non-obvious as per U.S. Patent Law, I would have referred to that section.

From the context, that should have been "obvious" given a small modicum of reading comprehension. If this was a court brief, I would be more careful to put "non-novel" in keeping with the legal terminology, but this is a journalistic piece, if you didn't realize.
quote:
Fourth, thank you for making a sane argument regarding it potentially being an abstract idea. However, this has no bearing on novelty (35 USC 102) or obviousness (35 USC 103). It's a 35 USC 101 question. If you want to make the argument, you need to compare the claimed subject matter in the Apple patent to the Diehr and Flook case that the Court starts talking about on page 11. Unfortunately, the law here is changing frequently and right now we are left doing a compare and contrast with Diehr and Flook to determine if something is an abstract idea or not. Not easy to do for a lawyer, let alone a patent examiner.
Well that's where a small amount of common sense comes in...


RE: Another Day Another Clueless Patent Article
By Tony Swash on 7/18/12, Rating: -1
By retrospooty on 7/18/2012 6:46:13 PM , Rating: 5
"Reading DT on patents is like listening to somewhere who plays Fifa 12 lecturing Sir Alex Ferguson on how to manage Manchester United. Embarrassing, obsessive and a bit weird."

Not really, most people tune out long before the end of your posts. :P


By sprockkets on 7/18/2012 10:00:33 PM , Rating: 1
You and Jack Purcher from Patently Apple are so full of sh_it.

This is the guy who all day whacks off to every patent apple "wins", as if it is a game where apple patents first cause they are so awesome.

Really.

How about the time apple he posted that patented the whole entire game of Rock Band, just months after it was released, with that idiot playing stupid as if apple invented it, thus patented everyone else's work?

Oh, and btw, if apple is doing so well, why bother suing? That's right, Koh asked that question to apple, as in, they haven't proved any damages due to samsung implementing their patented work.


By themaster08 on 7/19/2012 2:26:12 AM , Rating: 1
quote:
Leave the law to the judges and the courts, they are the professionals.
I agree. Leave it to the judges that have invalidated many of Apple's frivilous patents, and have forced Apple to public apologise to Samsung after accusing them of stealing.


RE: Another Day Another Clueless Patent Article
By Theoz on 7/18/12, Rating: -1
By hexxthalion on 7/19/2012 9:10:21 AM , Rating: 1
Jason? never, he's always right


By JasonMick (blog) on 7/19/2012 10:35:27 AM , Rating: 2
quote:
You just completely agreed with my point and still called me clueless. Patentable subject matter = 35 USC 101; Novelty = 35 USC 102. Obviousness = 35 USC 103. Stop conflating them and blurring the lines. I get paid a lot of money for this and am quite good. Trying to help you out as I am an long time reader of the site. Take the help and improve rather than conflating concepts and arguing nonsense.
Okay first, let me say thank you for reading, if you are indeed a "long time reader". And good for you if you get "paid money for this". I get paid money for analysis too -- it's nice, right?

That said, your general tone is rather rude and belligerent. To worsen matters you clearly did not understand my opinion for non-novelty/invalidity. Bizarrely you were choosing to interpret my words as direct references to the 35 USCS/U.S. Patent Act (e.g. the word "obvious") when I made no such reference in the article. Hence I had to correct your errors and misstatements and redirect the discussion in a positive direction.

Anyhow, back to the law itself, you're crazy to suggest that sec. 101 was not meant to be read together with Sec. 102. That's just nonsense.

Every pertinent court decision quotes the two together, because without 102, 101 is completely ambiguous.

Novelty essentially spells out what is patentable. Just because the title of the section does not read "patentability" does not mean that that it does not discuss it.

The suffix "-ability" means "able to be". Sec. 102 discusses what is not able to be patented hence it further defines patentability by logical negation on the grounds of non-novelty, prior art, and other issues.

You are getting too hung up on semantics and missing the forest for the trees.

Again:
Sec. 101 says essentially, "everything is patentable, unless it was already patented".

Sec. 102 explains in more detail what is not patentable.

Sec. 103 primarily discusses prior art as a means of invalidating patents.

You have to read all three sections together to get a full grasp of what is patentable, what is not, and how to invalidate patents.

You can most definitely make an argument based on Sec. 102, and the cases I mentioned to specifically reference invalidity criteria in Sec. 102 (non-novelty in legalese).

I think it is you who is trying to conflate matters.


By Theoz on 7/19/2012 1:07:14 PM , Rating: 1
By trying to clarify I think I made it more confusing. 101 states the types of things that are patentable. 102 and 103 state that even if you fall under one of those categories we're not giving you a patent because of these exceptions. My point was that you can't read what is in 102 to help define what is in 101. They are entirely separate questions.


RE: Another Day Another Clueless Patent Article
By testerguy on 7/19/12, Rating: 0
By JasonMick (blog) on 7/19/2012 10:19:02 AM , Rating: 2
quote:
I highlighted the 3 words making this whole sentence irrelevant. Naturally the patent office who has a firmer grasp of the law than you managed to conclude differently.
Says who? The laws is pretty brief and concise, and there's a handful of high profile cases that should elucidate in greater detail what is unclear in the law... the rest is purely common sense.

Anyone can understand patent law, it's not really that hard.

What's lacking by the clerk who approved this and by you is common sense.

Who says some low-level patent clerk is some great legal scholar or someone with a high-level of technological understanding? They're just a person like you or I. You're delusional to think otherwise.
quote:
I don't think I have ever seen such a ridiculous argument. I wonder if you honestly think that ' could almost surely ' represents any kind of legal argument, whatsoever, completely absent of any evidence or supporting documentation, based purely on a speculative guess of a biased idiot. Seriously?

As for the 'Veronica search engine' - a search engine, not a unified search in the same way as Apple implemented it, is completely irrelevant. It simply crawled websites / ftp servers looking for a specific string - something not even remotely similar to what Apple implemented.

So a guess and an irrelevance, as well as ignoring the words of a legal mind who actually has a clue.

Impressive.
Weak argument, troll. To quote Solandri
quote:
"But Veronica didn't search your own computer!" you say? By definition if the unix server you used ran a gopher site which was indexed by Veronica, whenever you used it you were searching your own computer along with those on the Internet.

Seems to me Apple took an already-existing idea from the open source community, built their own version, and filed a patent on it.
But don't let your technical incompetence get in the way of running your mouth. By all means keep blindly defending Apple with little regard to history.


RE: Another Day Another Clueless Patent Article
By Theoz on 7/19/2012 1:13:44 PM , Rating: 2
quote:
Anyone can understand patent law, it's not really that hard.


I agree with this. But the point is that attempting to understand it as you are doing doesn't make you an examiner, lawyer, judge or other qualified professional that has passed bar exams to become licensed and compiled many years of experience. It makes you a casual, and often incorrect, observer.

LeBron James and I both play basketball, but I wouldn't go around saying that I know more about playing basketball than he does.


By JasonMick (blog) on 7/20/2012 12:14:36 PM , Rating: 2
quote:
LeBron James and I both play basketball, but I wouldn't go around saying that I know more about playing basketball than he does.
And yet a patent clerk isn't exactly "Lebron James".

Maybe you could say Judge Posner is "Lebron James" of the patent world -- and guess what? He argues software patents are invalid, based on similar analysis to what I provide you, free of charge above.

A patent clerk?

They're more like a D-leaguer than an NBA player.

Good patent attorneys get a job trolling for companies like Apple, as that's where the big money is at.

I have several college buddies who have done precisely that. I can't fault them for gaming the system, they're banking... just a smart play.


By Cheesew1z69 on 7/19/2012 4:51:38 PM , Rating: 2
HA! Troll got OWNED.

quote:
What's lacking by the clerk who approved this and by you is common sense.
Truth...

quote:
You're delusional
Truth...


By testerguy on 7/29/2012 7:43:24 PM , Rating: 2
quote:
Says who? The laws is pretty brief and concise, and there's a handful of high profile cases that should elucidate in greater detail what is unclear in the law... the rest is purely common sense. Anyone can understand patent law, it's not really that hard. What's lacking by the clerk who approved this and by you is common sense. Who says some low-level patent clerk is some great legal scholar or someone with a high-level of technological understanding? They're just a person like you or I. You're delusional to think otherwise.


Right, so the law is so easy and concise, yet you keep coming to exactly the opposite conclusions that the JUDGES come to.

quote:
"But Veronica didn't search your own computer!" you say? By definition if the unix server you used ran a gopher site which was indexed by Veronica, whenever you used it you were searching your own computer along with those on the Internet. Seems to me Apple took an already-existing idea from the open source community, built their own version, and filed a patent on it.


OK, this is the new most absurd argument I've ever read. You're comparing Apples advanced multi-search with a completely different tool which searches SERVER FILES. Your argument is that if you so happen to be using a server, that it also searches your own computer? LOL.

The multi-search Apple created bears no resemblance to this at all, as it was required to actually understand the content of the items it was searching which may not necessarily contain the direct string (encoded), and search the relevant items accordingly. Furthermore, it didn't only function if you were in fact a server. It's like arguing that Google is multi search if you're running IIS on your Windows PC. It's a joke, and I hope you know it.


“Then they pop up and say ‘Hello, surprise! Give us your money or we will shut you down!' Screw them. Seriously, screw them. You can quote me on that.” -- Newegg Chief Legal Officer Lee Cheng referencing patent trolls














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