Apple Loses German Top Court Case on Swipe-to-Unlock Patent
bloomberg.com
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In real life, slide to unlock pushes a bar in place to prevent the door from swinging open. You slide to unlock, so the bar is moved away from blocking the door.
"On the computer", it's making sure that you deliberately intended to use the device and it's not an accidental "pocket dialed" motion.
These are similar motions addressing different problems. In the physical world, you slide the bar into place to allow the bar to work for you. On the computer, you slide to express a deliberate intention.
Anyway, deserving of a patent or not, these seem like different mechanisms.
Those are all examples of authentication. Not at all the purpose of the slide-to-open.
The earlier dumb-phones used to have a key-lock functionality where you would have to press a certain combination of keys in quick succession. Or just open a physical lid.
Using physical analogs has LONG been common.
The other day I used ProComm (yeah, I know, right!?). To close the connection, I clicked the phone icon and it animated showing the phone being placed back on the hook.
That being said, if you had to use a newly invented screw or slide to get that chicken coop mod to work, then that probably should be patentable. Similarly, on a phone, if you invented a new means of translating that motion into a slide, or other actual invention, than that probably should be valid. Using existing touch drivers to recognize an obvious real world motion, probably not.
I say this as someone who has worked as a patent examiner and understand the law (not the US law exactly, but they're quite similar world wide).
But more importantly, "slide to unlock" is essentially "swipe to unlock". The swipe zone is confined to a specific area, but it's still swiping. "Flicking" also works. Apple are trying to patent "swiping", which is ridiculous.
Just like "double click to unlock" would be equally absurd as a patent for unlocking a desktop PC. Changing the name to "double press to unlock" doesn't suddenly make it unique.
On a desk cluttered with papers, you can see bits of some papers and others papers are hidden by other papers that are on top.
There is no way you should be able to patent such an obvious real world, real life experience, just because you were the first to take that real world experience and replicate it on a computer screen.
All you have done is modeled a real work experience.
Frames, boxes, panels, or "windows". A child could come up with the need for a digital version of a container if none existed. The name that catches on to describe that container is irrelevant.
In the digital world we need to be sensible about what would inevitably exist given the hardware allowance for such an obvious software feature. Slide to unlock is child's play.
That's an incredibly bad example. Besides sharing the same word (in English), there's almost zero similarity.
"Are computer mice and the kind that squeak different enough?"
Xeyes is not rectangular, Portholes are round. The window on my boiler permits views inside the boiler etc. etc.
Just like the iphone.
If it was 'just like' the iPhone, you wouldn't have to explain the physical mechanism.
It is just like the iPhone. The patent is as absurd as would be 'rotate the door handle to enable the door to open (on a computer)' or 'toggle the light switch from the bottom position to the top position to turn on the lights (on a computer)' or 'slide the slider one way to increase the volume, and the other way to decrease the volume (on a computer)' or 'push the brake pedal to apply the braking mechanism (on a computer)'... etc^3
I was emphasizing how it is just like the iphone. The iphone lockscreen is "springloaded" too. It pops right back when you let go of it.
You slide to unlock to open a door. You slide to unlock to open your phone (or rather the "door" blocking you from accessing the content in the phone). Seems quite similar to me.
The first time I saw it was on the Neonode phone, several years prior to Apple's patent. They were Windows CE based if I remembers correctly, and very proud of their UI. You can probably still find movies on Youtube.
The phrase "Supreme Court" is indeed problematic, since we have quite a few of them (administrative law, labor law, finance law, social law, plus BGH and BVerfG), but I think it's okay to call the Bundesgerichtshof so.
More okay than calling our Federal Constitutional Court "Supreme Court", at least, since generally speaking the Constitutional Court is not "above" the other courts.
The same thing is true in the United States. It's a term that can mean a few different things on the state level, depending on which state you're talking about.
which is the highest court for civil cases
I always smile seeing long German words. I just imagine some fellow American being in a public setting and having to attempt to pronounce the word. I am a horrible speller and I feel I would be so much worst if I had to spell German words.
English does exactly the same: "3-year mandatory contract" is pronounced as a single word. It is just a matter of writing convention.
«English word chains such as _child labour law_ may count as well, because it is merely an orthographic convention to write them as isolated words. Grammatically and phonetically they behave like one word (stress on the first syllable, plural morpheme at the end).»
> Gesellschaft für musikalische Aufführungs- und mechanische Vervielfältigungsrechte
That's what I mean with "Constitutional Court is not above the Federal Court".
Unlike the U.S. Supreme Court, the Federal Constitutional Court only deals with constitutional questions. It is decidedly not an appellate court.
And even if you wanted to claim the decision was wrong, a simple error in judgment by another court is not grounds for constitutional review.
I have been involved with several patent suits (on both litigant side and defendant side) and as an engineer, I have to admit that there has never been a time when I haven't read the statement of the problem the patent says its going to solve, and not thought of the solution myself, way before the patent presents the same solution. In other words, every single litigated software patent I've been asked to review has been BLATANTLY obvious. And I'm no genius. I've talked to other engineers and they've all said the same thing. I just explain a problem domain, and they usually give a solution that comes under the claims of the litigated patent.
This is not to say that there aren't non-obvious software patents. Its just that those never seem to get litigated, because they aren't some obvious concept sitting at the nexus of a well-trodden path the industry is following.
I can't describe or link the specific patents I've been involved with, for obvious reasons, but the stuff I'm talking about sounds like things as follows:
"Receiving at a server a data packet, the data packet comprising a user identification number and a merchant identification number
retrieving a record in a database referenced by the user identification number
determining if the record in the database contains an authorization entry corresponding to the merchant identification number
responsive to the record in the database containing an authorization entry corresponding to the merchant identification number, transmitting a second data packet, containing an authorization token, to a server operated by a merchant."
I am not lying to you. This is how stupid each of these patents have been. Sometimes even worse.
Nobody not involved in these litigations understands how bad it is. And this is coming from someone who has made at least enough money to buy several luxury cars, providing consulting services to this particular legal industry. In other words, I have a financial interest in things remaining this fucked up. And I'm still telling you, its really fucked up.
I have occasionally seen a software patent with an idea that was not obvious at least to me, but I haven't seen many of them. Most have been as you describe: once the requirements are understood, there is no difficulty designing a system to satisfy them. It's just that (again, as far as the PTO can tell) nobody has come across that particular set of requirements before.
I think that in order to litigate a patent, the patentee should be required to provide evidence that their invention was nonobvious. The PTO is poorly equipped and structured to do a good job filtering out obvious "inventions" (for example, examiners have no incentives to do so); and yet, as things stand, the courts defer to the PTO on this question. I think the rules should be changed so the court has to be persuaded of the nonobviousness of the patent before the suit can proceed. That would be a potentially adversarial proceeding itself, in that the defendant would be allowed to argue that the invention is obvious, but the primary burden of proof would be on the patentee.
One could argue that this would put on the court a job that should belong to the PTO, and that argument has some merit, but here's a counterargument. It's often hard to tell, when a patent application is filed, how much the potential patent will be worth. Delaying part of the effort involved in evaluating the patent until such a time that the patentee has actually decided to litigate makes some economic sense. More to the point, it is often easier to show nonobviousness once some time has passed. One of the Graham factors [0] that can be used as evidence of nonobviousness is commercial success of a product based on the invention. Such success can't have occurred yet at the time the patent application is filed.
The change I am proposing would constitute a massive shift in the balance of power between patentees and alleged infringers, and a lot of oxen would be gored; I'm well aware of that. A lot of companies would see the putative value of their patent portfolios drop precipitously. Against that, they would have to worry a lot less about being sued.
I'd be interested in your take on this, as you've been inside the system a lot more than I have.
[0] https://en.wikipedia.org/wiki/Graham_v._John_Deere_Co.#The_P...
I think therefore that one simple way to ameliorate some of the abuse in patents is to give defendants an independent invention defense. What I mean is, if you can prove that you had no access to the patent holders patent or idea, and that you came up with it independently, then, that should be taken as a factor showing that the solution may have been obvious. If additional companies similarly show that they also independently came up with the same solution, then that is additional strong evidence of obviousness that should make the finding of obviousness more likely.
Right now, independent invention is not a defense. And multiple independent invention isn't even considered evidence of obviousness.
As embarrassing as slide to unlock is for the US patent system, its actually not the more egregious case of obvious things being patented. If you look at what is being filed in social networking patents, database patents, and cloud computing, any person here on Hacker News would be shocked.
The problem is, the USPTO examiners are NOT shocked. Have you ever talked to one of them? The quality of their technical knowledge is EXTREMELY poor. EXTREMELY. The USPTO seems to have recruited third-rate PHDs and other "technical" folk from developing nations, and put them into examiner positions based on their degrees alone. I have seen many many office actions from USPTO examiners where it was obvious that the examiner understood absolutely nothing of the patent he was reading, so he just did a Google search on the key words in the abstract and pasted the paragraphs he found into a response. The office actions are not even coherent, much less effective.
Don't take my word for it. Do a search for a patent that has some technical phrase you are familiar with ... say Markov Chains. Then take the patent you find and go to the USPTO Public PAIR database. Pull up that patent application. Go into the record of documents for that patent and read the first office action that was sent by the USPTO for that patent ... I will bet you 10 to 1, the office action will be utter gibberish that makes no sense. I'm willing to give you those odds, because out of the hundreds of office actions I have seen, perhaps less than ten have made any sense ... where the examiner had any clue at all.
Programmers don't realize this basic problem.
Every patent lawyer understands it. And they are embarrassed by it. They are embarrassed because they are making tens of thousands of dollars writing oppositions to documents written by what are essentially technically retarded individuals. This is not a disputed fact. Go put some beers into a patent prosecution attorney, and let him start talking to you about office actions he has received from the USPTO.
These office actions usually don't get seen by the public. They only get surfaced in big litigations ... and when they are surfaced, all involved are deeply embarrassed. Why? Because both plaintiff's and defendant's attorneys don't want to come out and say that they are making a living in a system that is fundamentally broken at its very core.
What does it mean if the USPTO patent examiners don't actually do any examination worth a damn at all? Has the American public been made aware of this blatantly obvious and true fact? No. They continue to think that the USPTO is actually serving a useful examination function. That is a complete and utter lie. And its a lie out in the open. Just open up the prosecution history for any technical patent as I asked earlier. ANY TECHNICAL PATENT.
And people wouldn't necessarily have to have read the actual patent in order to abuse such a defense -- they might just have seen the product that incorporates the invention.
As for how one would present evidence of non-obviousness, if you follow the link I gave, you'll see three kinds of evidence which can support such a claim, according to the Supreme Court: commercial success; long-felt but unsolved needs; and failure of others. I think what these all have in common is clear: you need to show that others have had an incentive to try to solve the same problem, but haven't done so. That would constitute evidence that the solution wasn't obvious.
> It[']s a bit easier to prove that something was obvious at the time of invention. One sure sign is if there are many cases of independent invention.
How would this work? If the independent inventions occurred before the patent application, they're already prior art; if they occur after, then once again, we can't know they were truly independent.
I already knew the examiners were pretty bad, though maybe I didn't realize quite how bad.
How did you get started in this kind of consulting?
BTW, substantial similarity acts as defacto evidence of copying in Copyright. So, you might claim you didn't copy Michael Jackson's Thriller because you were on a desert island and never heard it, but if your rendition is really similar to the original, then that similarity is itself proof sufficient that you are lying. Additional evidence isn't necessary.
In software things could work differently. I think one way the defense would be most aptly used is in cases like the notorious podcasting patent. There you could see literally hundreds of independently written podcasting style applications, where literally every one of the engineers writing podcast software were willing to testify that they'd never seen the podcast patent or heard of the company that wrote the patent. I think courts can take that as strong evidence of obviousness, as all of those engineers perjuring themselves is unlikely, and the simultaneous widespread invention of the same thing means its probably an inevitable and obvious advance.
I don't want to go into too much detail about how I started my current patent work, because this account is anonymous. I'll just say, though, in this business credentials mean everything and actual practical expertise means nothing. I have a law degree from a top ten law school in the US, in addition to an engineering degree from an Ivy league school, and over a decade of engineering experience at brand name US tech companies. My resume looks good. That's why I get work. It has nothing to do with my skills as an engineer. I know how to communicate technical ideas, read legal documents, and look confident in my advice to people for whom appearances matter.
Any bright engineer can learn to do what I do in less time than it would take to master something technical (like machine learning), but you'll need paper credentials to get in this business. That's why I don't recommend this line of work to people that prize capabilities over paper.
Also, its a get rich slow scheme.
So for copyright, the absence of substantial similarity is a straightforward defense, but it couldn't work that way for patents.
I agree about the podcasting patent. There are a few cases where so many people have independently invented the thing that its obviousness is overwhelmingly clear. I don't know how often that happens, though.
Thank you for your comments, though. It has been interesting hearing about your experiences, and I think we agree on many points.
All Apple did was to acquire the inventors of the capacitive touch - and worked a bit on the UI. And while it's valuable to be the first company who recognize the importance of a capacitive touch screen - that isn't a basis for a patent - and Apple did get enough benefits anyway.
Sounds like a terribly inefficient system to me. Not to mention that because the US Patent Office has such low standards for accepting patents, that also means lawyers will file just about any crazy idea they can come up with, backing up the USPTO for 4 years.
If the USPTO took a stance to reject 80% of the filed patents while still charging them a few thousand dollars per application, I think the quality of the patents would significantly improve in a few years. so if there are some good patents in there, perhaps from a startup, that startup will have to wait 4 years to get it. That sounds like ages for a small company and it could be long dead by then, especially if it doesn't get funding because of the lack of an approved patent.
http://www.macworld.com/article/2042023/apples-crucial-overs...
http://www.zdnet.com/article/apple-bounce-back-patent-declar...
I am not a lawyer and I have no opinion on the validity of the bounce-back patent (although the German court rejected it based of publication date rather than merit), but from a business point of view I can see why Apple was so keen to hog bounce-back for itself. I didn't buy a iPhone for a few years but they won a customer that day.
I can't think it even remotely conceivable that I invented that. It's just one of the first things you think of.
Have you never quickly opened a drawer with stuff in it?
Or a door with a rubber stop on the wall. Or even a door with a soft spring that prevents it from opening too far.
Or a car with good bumpers.
Or a chair that springs forward if you rock back too far.
Or bungee jumping.
Nope, can't see any evidence of that action in the physical world at all.
I agree, but whether they have been covered and whether they should have been are very different things.
"The company who patented a chair rocking mechanism would not be affected by the inventor who made a door with soft springs"
Probably not, given how messed up the patent system is, but if you read Thomas Jefferson's writings on patents, it isn't too hard to imagine him spinning furiously in his grave at where the patent system is now because of this sort of thing.
See, for example:
http://www.let.rug.nl/usa/presidents/thomas-jefferson/letter...
What the founding fathers considered "non-obvious" was a vastly higher standard than what is passed off as non-obvious these days (these days it seems like most people who talk about patents consider "non-obvious" to be about the equivalent of "could someone have come up with in in a minute off the top of his or her head?", but for Jefferson, et al, these "X but on Y" patents would have been considered laughably weak and extremely damaging to the public good.
While I don't agree with awarding strong protection via IP to UI patterns such as the "slide to unlock", I think we should acknowledge the merits which exist in these "leaps" forward. If everything was that obvious, why all of the other mobile UI alternatives started to look "pre-historic" in a span of a few months?
Another reason is to incentivize innovation by awarding a temporary monopoly. Apple will continue to make more money from the iPhone and iPad than many entire countries' GDP, patents or no patents. They don't need any additional artificial "incentives."
Another reason is to reward those who finance expensive long-term R&D efforts. No lengthy R&D efforts are involved in touchscreen gesture processing. Again, the market is doing just fine at rewarding Apple on its own.
So what exactly do we gain, as a society, by awarding patents on things like slide-to-unlock? Exactly how is the "progress of science and the useful arts" being promoted?
If we were a lot more thorough about awarding patents wouldn't that increase the overall cost to society to exhaustively audit patents from the outset, instead of auditing only the small subset that's troublesome enough to be challenged in court?
I said, as explicitly as I could, that I don't agree with strong protection through IP to slide to unlock.
Of course, that doesn't mean that Apple should be able to patent it. Good UX is composed of many small things, each too small too patent.
Why do big companies get outfoxed regularly by 10 man startups? The reality is that most large corporate entities are inefficient and acquisitions aren't usually for talent, but for other purposes: buying before a competitor does, buying the patents and firing the talent, burning through a cash reserve that, if left alone, will be given up as dividends,etc.
You have never worked at the raw level of getting a touch screen controller (especially the older ones, todays once are much nicer) working.
The work Apple did to get first generation capacitive touch screens working is impressive, I say this with no more experience than having had to get later generation cap touch solutions working.
The amount of clean up you have to do on the signal, the sheer garbage you get through, and then to figure out what gestures actually work reliably?
I won't comment of if it is patentable or not, but it sure as hell is not trivial. Getting cap touch working involves close collaboration between the EE, ME, Firmware, Software, and UX teams.
The nice little world of touch points software developers get access to at the highest layer is supported by a massive effort beneath.
The whole "but on a computer" patent needs to go away. "Sliding a latch from one position to another to open but on a computer" should not be patentable.
It seems there are more patents that fill this description.
Just so I understand what happened, can someone summarize German patent law? Is it the same 3 tests as in the U.S., i.e. statutory, novel, non-obvious?
Simple != trivial. The art is in designing a high quality experience, not in solving a programming problem.
Look and feel is a very real and valuable thing in the marketplace. The big differentiator between Apple and everyone else is that Apple pays attention to - or used to pay attention to, anyway - the user experience,
The code behind the experience was always secondary to that. Users don't care about it, and they're completely fine with not caring.
I agree that there are limits, especially when there are patents on rounded corners or specific English words.
But generally if there's innovation in the user experience on a screen it's potentially patentable, even if the code behind it is trivially simple.
AIs have no concept of user experience, so it's unlikely you'd get much of marketable value out of one.
I'm not so sure.if you found some drug as the result of an high-throughput-screening by robots/ai - you would get a valid patent.
So technically not much really qualifies. [IANAL]
Now arguing the whole patent system is fucked up is perfectly fair but we shouldn't celebrate a legitimate, non-abstract patent being incorrectly invalidated.
It says that it wasn't sophisticated enough. Safety pins and cats eyes both require sophistication in their construction.
i'm always in two minds about this but i lean very heavily towards culling people who think this sort of thing should be patentable. i think it would benefit everyone for the entire future mostly...
Also there's still iPhone 5C(heap) phones in production which don't have fingerprint reader.
Our property concepts are fundamentally broken. Copyrights, patents and especially real estate are all flawed concepts that privilege their owners far more than they should. But we allow them to persist for centuries; then we wonder why society is fucked and some people have all the wealth.
For a full answer, try: "Progress and Poverty" by Henry George.
Ownership is the fun stuff where you pay money/goods to the previous owner (who might very well be (a descendant of) an oppressor). In exchange for rights of exploitation (i.e. living on it).
It's not the titles that make real estate unfair, it's nature itself. That's why an egalitarian society can not be like nature but must instead be governed by rules and regulations. This is why democratic socialism is superior to libertarian capitalism (at least when we're talking equality and 'fairness').
The biggest problem with the patent system is trolling. Which is actually a wealth transfer downwards. Smalltime inventors and lawyers extort F500 companies.
Patents effectively never level the playing field. Trolls and big companies eliminating competition are the key clients and trolls are mostly multi-million or billion dollar companies like IV and rich scammers like Spangenberg, Hyatt, and Lemelson.
Trolling itself is one of the few parts of the system that sometimes targets big companies and therefore an essential font of reform ideas. Without trolling, big companies would slam startups even harder with patents. The needed reform is to limit patents and keep them away from software, business, finance, 3d-printing, CNC, robotics, and other new tech the patent lawyers are trying to destroy.