1. Technically, the USPTO hasn't yet "invalidated" the patent; it issued a first "Office action" in which it stated that all of the patents claims were unpatentable in view of varying combinations of prior-art references.
2. Institutionally the USPTO is very much aware of the significance of reexamination for a patent in litigation.
3. The Office action was signed by a "primary" examiner, i.e., someone who has been around the block a few times. Another primary examiner and a supervisory primary examiner are listed as "conferees." You would be right to read this as a signal that the USPTO takes these matters very seriously; the detailed written analysis (which I haven't studied) seems to bear this out.
4. The primary reference cited is a patent [1] filed in November 2005 whose lead inventor was Danny Hillis --- dare I say, the legendary Danny Hillis [2].
Another main reference is a Japanese patent publication from 2000, referred to as the Nomura reference.
5. In responding to the rejection, Apple can try to establish that their inventors predated Hillis's November 2005 filing date. This is referred to as "swearing behind" the Hillis patent's filing date [3]. But the Apple inventors' filing date is January 2007; swearing behind that far would be a real challenge. (I won't go into the details of the statute and regulation unless people are interested.)
Apple can't swear behind the 2000 Nomura publication because it was published more than one year before Apple's January 2007 filing date --- see 35 USC 102(b).
6. Paragraph 14 on page 34 is pretty typical: It says, in effect, "you'd better take your best shot at contesting this rejection now, Apple, because the next time around it will be a final rejection."
7. If, as seems likely, the USPTO does issue a final rejection, Apple can appeal, first to an administrative appellate body in the USPTO, and if necessary to the U.S. Court of Appeals for the Federal Circuit. The Federal Circuit is required by Supreme Court precedent to be fairly deferential to the USPTO's findings in some respects, but it's not entirely clear to me how that would play out here.
[EDITED FOR STYLE]
[1] http://www.google.com/patents/US7724242
That you classify it as 'correct' is icing on the top.
This seems to be one step of a number of the way to invalidation but far from a knock-out blow for the whole patent YET. There is a range of possible outcomes including total invalidation, the patent being upheld and perhaps most likely some claims being invalidated narrowing the scope of the patent and making it easier to work around it.
Apple could try to convince the patent examiner to change his mind; that strikes me as an uphill battle for them, given the extent of the examiner's written analysis. Or Apple could propose amendments to the claim language and try to convince the examiner that the amendments overcame the rejections.
If Apple were to amend some or all of claims that are pending in the Apple v. Samsung lawsuit, that could have a major impact on the outcome of the lawsuit under the doctrine of "intervening rights"; for example, any portion of the damage award attributable to the amended claim(s) might go away [4].
[4] http://www.guttagiplaw.com/publications/patents/INTERVENING_... (especially page 6)
a) Samsung did present the evidence that the patent office relied on to invalidate but it was rejected by the jury
or
or
Option a) or b) would provide yet another indication of a miscarriage of justice in the trial. Option c) would be be an indictment of Samsung's lawyers who seem to have performed quite poorly in many respects.
This is not something that a patent examiner has the tools, training, and, most importantly, time to do on initial application. So I wouldn't expect any changes from the patent office itself.
Maybe someone with more knowledge of law on here knows if this is the case with patent law or not.
The USPTO should start each review under the premis that the application will probably be denied unless the application includes sufficient justification for it being truly novel.
If the USPTO started denying the majority of applications you'd, 1) start seeing less applications, and 2) applications would be of a higher caliber.
A great scifi short story that examines this eventuality in the context of art & perpetual copyright : Melancholy Elephants, by Spider Robinson. http://www.baen.com/chapters/W200011/0671319744___1.htm
By the way, the "Hillis" in the Hillis patent[1] (filed in 2005) is none other than W. Daniel (Danny) Hillis[2], the founder of Thinking Machines.
[1] Patent 7,724,242: http://www.google.com/patents/US7724242?dq=7724242
For example, 1997: http://tangible.media.mit.edu/project/metadesk/
1:30 in the video seems to show the behavior described.
So in the end, patents provided the incentive to innovate and $spend on R&D in America, and now free for all to copy. Without patents, smart investors will start to look at where they can most cheaply copy American innovations.
Perhaps it is you who is continuing the echo chamber.
Otherwise, you might as well cut most R&D spending and focus on reverse engineering. Getting really good at following fast is probably a lot cheaper than getting really good at inventing new things that turn into products.
Also, then you could spend a smaller fraction of money to "acquire" (through various means) the schematics and trade secrets and produce your own version of the next big thing. Sure, that is probably unethical, but without any semblance of protection via patents, trademarks, other IP law, it seems like that is what you would get.
That being said, as it gets cheaper to distribute information and turn that information into physical goods, the amount of value in the production of physical goods is going to approach the cost to manufacture those goods. There will always be some money in service, repair, etc. but a lot of things value will be destroyed along the way and it is not yet clear if that is a net positive for society at large.
In court, a party asserting that a patent is invalid must prove invalidity by "clear and convincing evidence," which is the highest standard of proof in U.S. civil law (that is, non-criminal law).
In contrast, suppose that the USPTO decides that a "substantial new question of patentability" exists and therefore initiates a reexamination proceeding. In that situation, the patent examiner need only show invalidity by "a preponderance of the evidence," which is colloquially summarized as 50.000001%, just enough to tip the balance of probability. It's also commonly phrased as "more likely than not."
(EDIT: Strictly speaking, the burden of proof applies only to facts, not to the ultimate conclusion. Here, the facts --- namely what the Hillis and Nomura prior-art references say --- are are essentially beyond dispute, although I suppose conceivably Apple might find some technical grounds to allege, as a matter of fact, that at the time in question, persons of ordinary skill supposedly would not have understood those references to mean A or B or C.)
Perhaps more importantly, in the court case, a non-expert judge and jury had to assess the prior art. In the USPTO reexamination proceeding, three experienced patent examiners did the assessment.
Consider timelines, too. Even with all of the oddities in the jury results, the degree of Hogan's specific involvement in swaying the jury only came light after his own public interviews.
Can a 2002 movie be prior art for a user interface? Because in this case it really deserved to be.
In the real world I much prefer double-tab and two-finger tap to zoom in and out. You don't get quite the same level of "accuracy" as you do with pinch, but precise zoom is largely useless on phone/tablets anyway.
I've owned lots of Palm-based PDAs and a Dell Axim with Windows Mobile, for my pre-iPhone touchscreen background. I was horrified at the prospect of owning a Palm Treo or anything with Windows Mobile at the time.
This is why there are other methods to zoom, such as double-tapping with a finger (i.e. thumb).
Maybe if the patent system made a bit more sense, we wouldn't be so much against all software patents. It reminds me of the argument that people shouldn't be yelling "SOPA" everytime a slightly dangerous law appears, because in the end the whole protest thing loses its effectiveness. In the same way Apple and others shouldn't file for a "patent" everytime they work for a few hours on something. But the system shouldn't allow these type of patents in the first place, otherwise there will be companies to take advantage of it.
If it was so "easy", why wasn't it invented a long time ago?
It's a fundamental mistake to write off a "simple" invention as easy to come up with, obvious, a no-brainer, etc. Simplicity is difficult.
And I'm not convinced Apple would license that IP to Samsung.
Apple has licensed patents to competitors in the past, there's no reason to believe they wouldn't in this case.
Google Maps for Android has something nearly identical with the +/- buttons. I've yet to find another browser that implements this behavior (Android 2.3 removed it for whatever reason).
Pinch-to-zoom has always felt gimmicky in comparison. Having to use two hands is annoying.
That's an absolutely ludicrous conclusion in this case, irrespective of the suitability of software patents. The patent office has said these specific patent claims are unpatentable due to prior art. That means that they're saying Apple didn't actually make anything new.
Further, in 2011 the US moved to first-to-file, so expect unpublished prior art to matter far less and give even more security to those who file patents.
---
Let's assume that because of patent protection not being available, smartphones are widely copied and become really cheap and all the 5 billion adults in the world have access to them. Clearly the smartphone makers themselves would make less profit. Now what? Would it make society as a whole worse off? There would be a lot of ideas that will be born on top of the smartphone - in fact, we are already seeing many of them. And profit would shift to people who execute on those ideas.
There was a time not that long ago AT&T used to justify its monopoly and sky-high prices for long distance calls on the investment it was making in Bell Labs. The profits that used to be enjoyed by AT&T have become distributed (to Apple, Google, Qualcomm and so on) and the R&D has also become distributed. If you looked at Bell Labs in isolation, the end of AT&T monopoly was a big negative. But if you look at the ecosystem as a whole, there is no contest.
When they first launched a product with pinch-to-zoom, Apple did not know if they would be granted the patent. They launched it anyway because it made the phone better just like any other company would do, regardless if someone could copy it. The patent in question has nothing to do with innovation and everything to do with threatening competitors.
The challenge to this patent is prior art.
For example, when driving nails, in theory it would be great if you could just push them into the wood but in real life a hammer turns out to be handier.
BTW, not sure about ios but in android you can turn the +/- zoom buttons back on in labs.
I mean, I understand the basis of this argument but pinch-to-zoom doesn't actually map to anything we do in the real world.
It would be especally impressive if you could show that all these putative benefits were, in fact, a net gain over all the very tangible downsides of this idea monopoly casino that is our patent system.
And at the top is the U.S.A. with strongest patent rights.
If you look at per-captia GDP http://en.wikipedia.org/wiki/List_of_countries_by_GDP_%28PPP... instead, the US is way down at #8, behind Luxembourg, Qatar, Macau, Norway, Singapore, Kuwait, Brunei, Hong Kong, and Switzerland. How many of those countries are known for having "strong patent rights" and $B lawsuits and sales injuctions by patent holders against vendors?
Hmm, looks instead like most of those are countries known for their ability to produce things of value and export them to other countries such as the US.
But you really lost me here with your rookie 'causation Vs correlation' point. Alternative thesis; powerful corporations (which occur in rich nations) have more government sway to enable protectionism.
That's why you see companies like IBM, Samsung, Microsft and Apple patenting the hell out of everything[1]. It's actually a great defense move (so, yeah, it's the inverse of risk) and sometimes take no research (just lawyers and money).
There are some patents that USPTO keeps rejecting from Apple, and Apple just changes the wording and try again[2] (no small guy can afford that) until they finally get the patent. Such a wonderfully new researched and risky idea shouldn't take more than one try on the USPTO, don't you think?
Sources:
[1] A Patent Warrior’s Education: http://www.nytimes.com/2012/10/08/technology/patent-wars-amo...
[2] The Patent Bureaucracy: http://www.nytimes.com/2012/10/08/technology/patent-wars-amo...
... which then begs the question: If the USPTO cannot do adequate research for granting a valid patent, then why are they granting patents?
UK, Germany, and Japan were still stacking their buildings' bricks back on top of each other while the US was figuring out what to do with its absurd postwar excess manufacturing capacity.
I have a Ph.D. in an engineering field, so I'm not easily impressed. That said, the inventions which are truly revolutionary are the ones where as soon as someone describes it you think "man, that makes perfect sense".
Yes, it makes perfect sense because it's the correct solution. That doesn't make it obvious before someone came along and spelled it out, nor guarantee that someone else would have invented it earlier.
There are some types of inventions "whose time has come". These will get invented at around a particular time by virtue of the supporting technology existing. Take the brightness control of LEDs using PWM and color mixing of different LED colors to make color changing LED lighting. Philips actually has a patent on this, from 1999. It was an idea whose time had come, and others came up with it independently many times since and frankly probably quite a few times before. But it was inevitable. I think it was a bad patent because it was obvious even in 1999 that you could use PWM, common already, to vary power through a LED to control brightness. It was also obvious in 1999 that you could mix two different primary colors together to form a mixed color. Patents aren't supposed to be awarded by simply taking two already obvious things and adding them together (or at least so says my patent attorney, who is perhaps too ethical about what she'll let me put into an application). But besides all that, I would argue that any "idea whose time has come" is probably also inherently obvious to someone skilled in the art at the time of interest.
On the other hand, there are some ideas which are not limited by any technology; they are limited by the creativity of humans. Take for instance the liquid metal battery that my employer works on. You float a molten anode metal on a slightly denser molten salt electrolyte on a slightly denser molten cathode metal, and bam, super high energy density, super high power density, low cost, long life-time battery. This is, in my opinion, an actual invention. There was nothing stopping someone from coming up with it earlier... but no one did. Why? Because it was non-obvious. It's still simple, conceptually at least.
As far as pinching to zoom? Honestly, I think it's somewhere between these things. Just because it's intuitive doesn't mean it's obvious. It's clearly more of a jump from a zoom button to a multitouch gesture than the jump from "LEDs can have variable brightness and different colors" to "LEDs can be mixed to make color changing lights". But it's also probably an idea whose time had come, by virtue of multitouch starting to exist. But I doubt any of that had anything to do with why it was invalidated; my guess would be that it was invalidated because of sufficient prior art to render it an obvious extension of existing technology.
the purpose of the patent is to prevent secrets from being lost due to the fear of competitors stealing it. Say you have a formula, or a special method of manufacturing a widget. You tell no one, and so stay in business because the widget is useful.
However, in the long run, such behavour is bad for society as a whole. Patents encourage these "secrets" to be revealed, for the price of an enforced monopoly.
If, however, a "secret" method that's being employed is readily and easily discerned by a skilled practistioner in the field, then it deserves no patents. Pinch to zoom is one such "invention" - the mere fact of describing it to somebody means they can implement it.
Amazon's one click buy is also another example.
In other words, if the workings of the invention is easily discernable in such a way that a skilled practictioner could replicate it without knowing what would've been written in the patent, then it deserves no patents.
It was (1983): http://www.billbuxton.com/multitouchOverview.html
Because it made no sense to even contemplate such a feature prior to the availability of capacitive multitouch sensors.
Once the hardware became available, the obvious gesture-based functionality was implemented quickly and independently by multiple engineers.
However, I don't see the real benefit of apple (or others) having patents like this. If they could not patent it, I think they would have included it in their product anyway. It's a cool feature. They got a head start. That's the value of creating something new--a head start. Things move too fast for there to be any real benefit to the general good by granting monopolies for 17 years. People will still create things because you can make a lot of money with a head start, particularly if you're the type of person/company that can maintain that lead by continuing to build great products without resorting to monopoly tactics.
The dropdown menu is a good example where I don't see much difference between a dropdown menu and pinch to zoom.
This logic leads to the conclusion that an ostentatious capitol building is necessary for economic prosperity, because most major economies have an ostentatious capital building. It's pure rubbish.
Try asking it to prove that the economic prosperity is caused by the patent system rather than merely correlated.
> Try asking it to prove that the economic prosperity is caused by the patent system rather than merely correlated.
About as provable as the opposite.
No, "troll" because you're trolling. Make an argument that isn't a textbook logical fallacy.
>About as provable as the opposite.
Are you arguing semantics? Absolute proof of anything is impossible? The thing to be proven is insufficiently specified, e.g. whether limited to software patents or to historically vs. in today's economy? That sort of thing? That's extremely pedantic, but I suppose it's technically correct. (The best kind of correct, naturally.)
So let's say not proof, just good reasoning supporting the position. Here, I'll start.
In the software industry where every individual with a PC and a compiler is a market participant, there are thousands of times more players than there are in most other patent-intensive industries, which vastly increases the cost of the patent system because the cost of clearing and licensing each invention against each patent is O(n^2) in the number of inventions. This number is so large in a market with tens or hundreds of thousands of participants that actually doing the clearances and licensing becomes an impossibility in practice due solely to transaction costs, i.e. the cost of each and every inventor tracking down and negotiating with each and every other inventor holding a potentially relevant software patent.
Moreover, as a result of the practical impossibility of actually doing that many clearances, it creates an environment in which everyone is potentially infringing everything. In such an environment, the patent system is inherently not providing the expected incentive to inventors, because there are too many infringers infringing too many patents to even so much as evaluate all of the possible infringement, much less negotiate licenses or litigate it, resulting in no license fees (or monopoly rents through the ability to exclude) from the large majority of infringers.
In addition to that, because patents are legally required to be licensed but software cannot rigorously and thoroughly be determined to be non-infringing in any cost-effective manner, an enormous amount of uncertainty about what patents a product may infringe overhangs the prospective market participants, which reduces the amount of funding available for new R&D because prospective investors will only provide funding if the expected returns exceed the risk created by software patents. Worse, because of the enormous amount of de jure infringement which is de facto business as usual, patent trolls with submarine patents can do an enormous amount of damage to anyone who experiences market success, and there is nothing the victim can do to prevent it because of the aforementioned practical impossibility of doing all the necessary patent clearances. This is worse than a normal risk because it occurs exactly to those investments which would otherwise have succeeded, providing an even more powerful disincentive to invest in new product development. The associated litigation creates a further deadweight loss on the economy because not only are those resources not being allocated to research, they're actively being misallocated to wasteful litigation and transaction costs.
On top of all of that, the reverse can occur and results in a potentially even larger harm: Rather than a successful company being sued by a non-practicing troll, the successful company can sue anyone who actually makes a product, because they hold enough patents that any nontrivial software infringes some of them. Between large companies this power cancels out, but when the relationship is asymmetric it becomes a club for incumbents to use against newcomers. Anyone who enters an established market segment is subject to suit by incumbents, which reduces the incentive for non-incumbents to innovate, because the cost of the inevitable litigation has to be factored in. Where this effect is sufficiently strong, it can destroy innovation entirely in specific submarkets, because no newcomers enter for fear of incumbents with patents and no incumbents innovate for lack of competition from newcomers.
So there you go. Let's hear your rebuttal.
Ouch! Now that's hitting below the belt.
Pick your poison: compete with China on lowest cost vs. high end jobs innovating. Except the later affords a more affluent lifestyle while the former require suicide nets in their buildings: http://i.imgur.com/JwBDR.jpg
> Pick your poison
Ah yes, I was wondering when you were going to get around to the false dichotomy.
> suicide nets
Wow you really are a desperate troll. Unfortunately for you, the suicide rate in the US and Japan is far higher than at Foxconn. Last I ran the numbers, Foxconn employees had the suicide rate of a Carribean island.
I guess that is something China is copying from the US and Japan: http://www.google.com/search?q=suicide+barrier
Admittedly, I did not set out to make a coherent narrative. I set out to probe this troll to see if, by some wild chance, he really had any points of merit. He pulled the 'echo chamber' line and I felt obligated to reconsider my assumptions. He put forward a halfway-falsifiable hypothesis and I looked up the relevant facts on Wikipedia.
> China is growing faster because 1) it's sacrificing lots of things Americans are too rich to be willing to sacrifice for the sake of growth; 2) it's in a much earlier phase of development and thus capturing low hanging fruit.
Sure. But you don't dispute that "China is hardly known for their strong patent enforcement", right?
> Re: innovation, the Chinese aren't known for strong patent enforcement, but they're also not known for innovation either. They have lax IP enforcement because their technology sector depends on copying technology from the US.
I've heard that all before. 30+ years ago, about Japan.
> Indeed, China has been stepping up IP enforcement as of late,
of late
> which has been correlated with an increased willingness of American companies to invest in China.
Sources, please.
> As China develops, it has been hiring American legal experts to help them develop a sophisticated, American-style legal system,
Suckers! No, I seriously doubt the Chinese are going to go that route in the long term. They believe in cash, exporting, are extremely skeptical of this Western "intellectual property" BS, and show no desire to trust their business to any NIH legal system.
Sorry, the way a formerly-great company like Sony could fall in with the lawyer crowd and go from making the coolest highest-value products you could buy to being an IP-focused company suing their file-sharing customers, suing enthusiasts like Geohot, and getting pwned by Anonymous made me feel a little sorry for them.
> because that helps attract foreign investment. The facts don't fit your narrative
Again, my sole purpose here was to examine the "at the top is the U.S.A. with strongest patent rights" claim of causation.
> and indeed suggest the opposite one.
I don't see anything you've said which supports that.
Also useful to note their increase is mainly quantity. Superficial.
For example: http://www.reuters.com/article/2012/03/29/us-apple-foxconn-i... NEW DORMS ... Foxconn committed to building new housing to alleviate situations where multiple workers were squeezed into dorm rooms that seem inhumane by Western standards.
And http://news.cnet.com/8301-13579_3-57527579-37/foxconn-confir... Foxconn, which has 1.2 million employees in China, has come under scrutiny in the past few years amid reports of employees committing suicide at company facilities. The company has also been accused of employing underage laborers, providing poor living conditions at its dormitory housing, and overworking employees.
http://en.wikipedia.org/wiki/Foxconn_suicides The suicide rate at Foxconn during the suicide spate remained lower than that of the general Chinese population[8] as well as all 50 states in the United States.[9]
