USPTO Makes Preliminary Move to Kill Apple's Rubber Band Patent
October 24, 2012 11:00 AM
comment(s) - last by
Decision could play a crucial role in Apple v. Samsung
Apple, Inc. (
) scored quite the coup when it in essence patented the animation of a naturally occurring phenomenon --
the transient response
. The company's so-called "rubber band" patent, describes multiple methods of making graphical actions over-stretch, then bounce back, say when scrolling or zooming. Apple has used the patent to
sue many of its rivals
The patent --
U.S. Patent No. 7,469,381
-- played a key role as one of four technology patents asserted by Apple in its
market-shaking $1.05B USD jury verdict
against Samsung Electronics Comp., Ltd. (
). But those happy days may be at end as the
United States Patent and Trademark Office
ruled that it was invalid on grounds of lacking novelty and being obvious based on a pair of previous patents.
The first was a patent "Controlling Content Display" "invented" by Luigi Lira and AOL, Inc. in March of 2003. That patent was filed with the
World Intellectual Property Organization
(WIPO) as is numbered
WO 03/081458 A1
Central Reexamination Division
at the USPTO ruled that in light of Lira, the rubber band patent was too "obvious" and lacking in novelty ("anticipated by Lira").
The patent by Mr. Lira discusses a similar bounce, but with the mouse as the input, not the finger.
Ironically, one of Apple's own patents was used in the invalidation as well --
U.S. Patent No. 7,786,975
-- which covers "Continuous Scrolling With Acceleration".
Samsung has filed a copy of the invalidation with
U.S. District Court for the District of Northern California
Judge Lucy Koh
, who presided over its jury trial versus Apple. In light of invalidation Samsung's Rule 50 ("overrule-the-jury") motion asks the federal judge to vacate the massive damages.
Bounce on the HTC EVO 4G
Samsung is also
appealing the rest of the verdict
This may not be the end of the story, though, when it comes to the rubber band patent. The Central Reexamination Office's ruling is non-binding -- it could reconsider it pending Apple's appeal. Even if it does stamp it invalid, the matter then has to go to the
Patent Trial and Appeal Board
(PTAB) -- a court of sorts at the USPTO -- for a final ruling. And even if the PTAB invalidates the patent, the ruling can be appealed to the
United States Court of Appeals for the Federal Circuit
That said, invalidations often stick, and the preliminary ruling has the potential to already mar Apple's greatest verdict against Android.
a statement to
The New York Times
, Android operating system-maker Google Inc. (
) gloated, "The patent office plays a critical role in ensuring that overly broad patents cannot be used to limit consumer choice. We appreciate the care the patent office has taken in re-examining dubious software claims."
This article is over a month old, voting and posting comments is disabled
10/24/2012 1:58:04 PM
1) Most importantly, the USPTO has not invalidated anything at this time. In accordance with the reexamination procedure, they have just issued a non-final rejection and now Apple will get a chance to respond, the USPTO will consider Apple's arguments, and then we'll see if this becomes final or is appealed. Nothing is final at this time. Your headline is accurate but to say that this was an "invalidation" or that the patent is "invalidated" is inaccurate. It should be noted that the NYT article you reference also repeatedly blurs this line. The NYT story is full of inaccurate garbage about USPTO procedures which you seem to have done a good job of parsing out of your story. This is an instance where the DT rewrite certainly improved the focus of the original story.
2) It is statutorily impossible for the USPTO to "make a move" here. A third-party must file a request for reexamination and then the USPTO must act upon it. The response here is a reaction, not the USPTO making a move. The USPTO can't just decide to reopen proceedings for an already issued patent. I think this is a bit unclear given the headline.
3) It is important to note that this prior art was not in front of the USPTO previously. It was identified by an anonymous third-party requestor. In fact, this patent has already been affirmed once based on other prior art in a previous reexamination. To balance the cost and time of examination the USPTO cannot search every corner of the universe to find all relevant prior art. Thus reexaminations exist to allow for third-parties to bring arguments and prior art to light and invalidate wrongfully issued patents.
4) You mean coincidentally, not ironically.
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