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  (Source: Orion Pictures)
Rejection is still preliminary, just like past rejections

The U.S. Patent and Trademark Office's (USPTO) Central Reexamination Office (CRO) has damaged Apple, Inc.'s (AAPL) legal campaign against rival smartphone maker Samsung Electronics Comp., Ltd. (KSC:005930) with its third in a series of major patent rejections in recent months.

On Wednesday, the CRO ruled [PDF] that Apple's "pinch to zoom" patent -- U.S. Patent No. 7,844,915 -- was invalid [PDF].  The patent claims the invention of a number of things multi-touch related -- including being able to distinguish between single finger scrolling gestures and a plurality of multi-finger gestures, including the aforementioned pinch to zoom.

These multi-touch techniques were largely first demonstrated in the 1980s in the world of academia by groups such as Myron Krueger's team at the University of Toronto.  Professor Krueger developed and published papers on virtually equivalent pinch-to-zoom multi-touch technology almost 25 years prior to Apple producing its first multi-touch device (the iPhone). 

Early multitouch devices
Myron Krueger developed pinch-to-zoom [pictured] in the 1980s. [Image Source: Bill Buxton]

The '915 patent joins the "rubber band patent" (U.S. Patent No. 7,469,381, aka the '381 patent) and the "Steve Jobs [multi-touch] patent" (U.S. Patent No. 7,479,949, aka the '949 patent) in patents that were rejected in preliminary rulings by USPTO reviewers.

All three patents will next be headed to the Patent Trial and Appeal Board (PTAB) -- a court of sorts at the USPTO -- for a final ruling.  Assuming the PTAB sticks to its latest decision (which is not guaranteed, but is often the case), the ruling can be appealed to the United States Court of Appeals for the Federal Circuit if Apple chooses.

How critical would it be if these three Apple patents were invalidated? The invalidation would eliminate two out of the three utility patents that Apple asserted in winning a $1.05B USD verdict against Samsung.  As a result the invalidations could slash hundreds of millions of dollars off the damages verdict.

One advantage Apple does have in both the '915 and '381 invalidations is that they are ex parte evaluations; meaning that Apple is the only party the USPTO is discussing the matter with.  Thus it's possible Apple could rectify the language in the patent to be less ambiguous, but in such a way to try to preserve its trial verdict against Samsung.

Also, it should be noted that while all of the patent's 21 claims were rejected, only a single claim -- Claim 8 -- was used in the Samsung case.

Sources: SBNation [The Verge] [PDF] [1], [2]



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Getting it right
By Shadowself on 12/20/2012 5:03:03 PM , Rating: 5
Let's get it correct and explain it accurately...

The Leahy-Smith America Invents Act allow anyone who files and pays ~ $17,000 to demand that the USPTO reassess an issued patent. The USPTO then will decide if it will reassess the patent (which so far has been 99% of the time). (Any reader/poster here on DT could do the same.)

While the patent is being reassessed it is temporarily "invalidated". What it really means in non legal speak is that the patent is once again under review. A patent under review (being reassessed, temporarily invalidated, or whatever term you want to use) is still legally enforceable.

The patent being still legally enforceable does not invalidate the court case based upon this (and other) patents.

During the review Apple will be required to come into the USPTO and explain why Apple believes the patent is still valid. If the USPTO goes with Apple's story then the patent is reaffirmed. If the USPTO does not go with Apple's story then the patent is permanently invalidated and Apple loses all legal standing on that patent. If this happens then all lawsuits Apple has put forth based upon this patent will be dismissed almost immediately.

To sum up:
Samsung filed and paid to have the patent reviewed.
The USPTO agreed to review it.
Apple will need to justify the patent in great detail.
The patent is still legally enforceable while under review.
It may be many, many months before the USPTO makes a final ruling.

The bottom line is nothing has changed at the moment and likely won't for a long time.

Look forward to many, many more of these kinds of filings in the future to get patents "invalidated" -- at least in the eyes of the public. Expect Apple to do it to Samsung and Google and Motorola. Expect Microsoft to do it to Google and Motorola. Expect Google to do it to Apple and Microsoft. $17,000 or so is a trivial amount to these companies (it probably costs more than that just to have the lawyers draw up the paperwork). And on and on and on it goes.




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