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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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RE: Another Day Another Clueless Patent Article
By Theoz on 7/18/2012 5:51:44 PM , Rating: -1
rofl

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?

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.

Third, obviousness is 35 USC 103 and has nothing to do with patentable subject matter.

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.

Fifth, my point was not that Apple's unified search patent was unbreakable. My point is that you didn't know what you were talking about because you were attempting to invalidate it with art that was not actually prior art. That point still stands. If you want to write another piece citing a document bearing a date prior to January 5, 2000 from Microsoft or discussing the Veronica search engine, than I will be happy to critique it. But as of now, my point that you based your earlier article around something that was not prior art is still correct.


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.


"The whole principle [of censorship] is wrong. It's like demanding that grown men live on skim milk because the baby can't have steak." -- Robert Heinlein














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