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Is Apple's Multi-Touch Patent Valid?
An anonymous reader writes "There is evidence that Apple's multi-touch patent application may have failed to list some prior art that showed gestures in multi-touch interfaces as early as the mid 1980s. Some of these examples even appear in the bibliography of Wayne Westerman's doctoral dissertation, and he's one of the inventors on the application's list. If true, that could leave them wide open for legal attack, should they try suing someone like Palm for patent infringement.
Also, Apple may be infringing some key multi-touch patents owned by the University of Delaware — and co-developed by Westerman while getting his doctorate."
Before posting, read the ~450 comments on the previous article.
It will be interesting to see if Apple's patent survives the next few days of Slashdot analysis, or even the next few hours! If the Westerman thesis is relevant, than not citing it is unfortunate for them. My guess is that Apple will follow this discussion, and then file for continuations and re-examinations based upon what shows up here.
NOT!
Or we'll have 20 years of touch screen stagnation. Great. Just as we are trying to get out of classic mobile phone layout stagnation.
Trolls are like broken clocks. They show the truth two times a day. The rest of the day they talk nonsense.
Apple will end up paying the University of Delaware a few million, and then happily proceed unencumbered - which is what happened when the University of Washington's Electrical Engineering department took on Matsushita et. al.
#DeleteChrome
Not unlike the word "iPhone" itself... which Apple announced they would use even though clearly Cisco already held the trademark to it.
Does this guy even know what patents Apple is licensing? Doubtful considering most are not made public. FUD?
Yeah I think everyone has already seen your wedding snaps. How about you go find the honeymoon photo's and come back.
But a patent infringement case can only proceed once the Pre hits the market â" widespread expectations call for a May launch â" and Apple has analyzed the deviceâ(TM)s software for possible infringement.
Totally not true! You are liable for patent infringement once you make the patented invention. You don't have to sell it to become liable.
Which is a good thing, because it means that one tech giant can't control/restrict/ransom this sort of tech, and that the Delaware patents will run out earlier than the apple one would.
Hooray!
The problem with patenting multi-touch gestures is it can lead to a huge learning curve challenge. For example the Linux/Windows/BSD/etc multi-touch is going to be totally different than OS X's methods because of these patents, making it not only hard for people going to OS X but from people who primarily use OS X but can't use the gestures they are used to when on a different computer. This is similar to patenting QWERTY so every other keyboard manufacturer has to pick different keyboard layouts to typing becomes unbearable on different systems.
Taxation is legalized theft, no more, no less.
Is any software patent valid?
Interestingly, the G1 android phone has built-in support for multitouch, as demonstrated here. However, there are some issues which make it more useful for pinch-gestures than other types. (See here for a description of why this is.)
Multitouch "proof of concept" pinch-zoom support has already been incorporated into unofficial Android firmware for the G1 (which incidentally is an AMAZING phone). If Apple's patent claims are busted-- and I'm still not clear on what types of multitouch it supposedly prohibits competitors from using-- it probably won't be long before we see multitouch show up on hardware that "officially" hadn't supported it previously.
Actually, you're wrong.
The sales of the patented technology deprive the original inventor of income that they are legally owed.
So you are not liable until you use the technology in commerce/public.
Mod me down, my New Earth Global Warmingist friends!
Engadget wrote a surprisingly well thought out analysis of the patent situation between Apple and Palm:
http://www.engadget.com/2009/01/28/apple-vs-palm-the-in-depth-analysis/
It's interesting that the motivations behind their patents aren't as obvious as they may seem. For example, Apple has several patents in the pipeline simply so they can tweak them later to specifically target Palm's Pre.
I only skimmed through the text of the patent. Now, what I dont get is how can they claim infringement if the patent includes a speciffic set of heuristics, without proving that webOSs (this sounds so funny in spanish: means eggs) is using precisely those?
NO SIG
35 U.S.C. 271(a):
Except as otherwise provided in this title, whoever without authority makes, uses, offers to sell, or sells any patented invention, within the United States or imports into the United States any patented invention during the term of the patent therefor, infringes the patent.
The most useful idea of all, pinch to zoom, is not in the Apple patent - that seems the most useful thing, but probably has a lot of prior art around it.
I think the Apple patent will stand but I don't think it will have much effect on the industry and other devices.
"There is more worth loving than we have strength to love." - Brian Jay Stanley
Next question.
But seriously, what difference does it make if apple patents this or not? I mean, no other GUI comes close to Apple's.
An example of this, was that I was not going to finish this post because this stuff is dumb, and people would come back saying that Apples UI is not that great, so I closed the tab. Safari asked if I wanted to close the tab because I was in the middle of filling in this form, with the default being Close (not OK, Cancel, or whatever).
I love multi-touch. I used to like having a mouse on a laptop, but now that multi-touch is here, its simply better than a mouse. Much more intuitive and less of an issue with RSI with a scroll-wheel.
I hate to sound too much like an Apple geek, but their software is so nice, that I'm always finding new things in it. Its almost like being with a person that you like. You are always learning something new about them. And I guess the inverse is true, that when you get bored with them, you find someone else.
I'm done hugging my MacBook :)
Back to multi-touch, I think that it should be allowed to be used by anyone. Its simply nice.
Does this, once again, show that patents on software ideas provide no benefit, what so ever, to the public?
I hope this gets overturned, or else, as another poster pointed out, we will see fighting among vendors and stagnation in an otherwise cool technology, which will leave us, the end user, not buying new stuff, because there is nothing to buy. Or not buying because you can only get incompatible versions from two or three big companies.
And for those who think that patent law exist to benefit the inventors, I must remind you that the rationale for patents in general, is to increase the number of publications on technical methods, which should apparently be a good thing.
I'd rather have the patent system shut down... simply because reverse engineering is a better option. Now hold on before you go ballistic on me here: With patents we know how it is done, but we can't do it anyway. Without patents, it takes some effort if the inventor has kept it a secret, but if we succeed we can do it. Samba is good example of this. And at lest in the computing world, keeping things a secret is A) Very difficult (BlueRay's BD2 DRM mechanism comes to mind), and B) Not always an option in an interoperable world.
And don't give me the "without patents vendors won't invest in research"-crap that i hear all the time... Yes they will! Because merchants are merchants who are merchants. As long as everyone competes under the same terms, there wont be much of a change: Companies still need to come up with something new and exciting to sell. The gizzmowiz of the day has to be smarter and faster and slicker than what the other company sells. That wont change, regardless of the approach to patents.
Some might actually argue, that without patents we will see *more* research being done, simply because smaller companies are not up against Big Iron who has 60,000 patents, of which a significant portion is broad and general purpose.
At least that is my two cent...
So we're supposed to argue not-even-filed patent defenses ... a bunch of non-lawyers. Ridiculous post.
BTW, there are lots of patents with "prior art," including Amazon's one-touch. I am a patent attorney. I have no idea how this patent will fare but this discussion is a waste of time.
Apple did a ATG Human Interface Group project that publicly demonstrated a mac tablet (not newton) gesture interfaces at WWDC, early 90's. The tablet was a pen and one finger, both could be used at same time but only one finger (single layer of ITO). Not long after AT&T gave Apple a multi-touch (five fingers) transparent panel using a XY matrix ITO, it was integrated into tablet. At about the same time, Apple discussed with a display manufacturer about developing a mixed mode display, modify the XY display drivers to sense fingers as well as drive display. cool stuff
Here are the University of Delaware-owned patents: 6,323,846 and 6,888,536. Two other early Westerman patents (6,570,557 and 6,677,932) were assigned to FingerWorks, which was bought by Apple a few years ago.
Anyway, all of the Westerman patents are for the capacitive touchscreen itself and the accompanying software, not the multi-touch gestures covered by the recently granted Apple patent. It could very well be that the company that designed the screens (Balda) or the company that manufactured them (TPK Solutions) has licensed the U of Delaware patents. Even if the screens are unlicensed, it could be that they do not infringe or that the Delaware patents are invalid. Given the amount of money that Balda, TPK, and Apple have riding on the iPhone, it is very likely that lots of due diligence was done on these issues, especially with Westerman working for Apple now.
Even if the Delaware patents are valid and infringed, it is quite likely that Apple's contract with Balda/TPK Solutions includes an indemnity clause that puts Balda/TPK on the hook rather than Apple. In the post-eBay v Mercexchange world, it is likely that the University of Delaware would be unable to enjoin Balda, TPK, or Apple, leaving it only able to collect damages and future royalties. Even if an injunction were to issue, I'm sure the University would be happy to negotiate a licensing agreement since it does not practice the patent itself. Finally, even if the University were to stonewall Apple, there are lots of other companies that make capacitive touchscreens that could fit the bill for the iPhone.
Now, let's turn to the issue of the prior art references omitted from Apple's patent application. Contrary to a popular misconception, there is no affirmative duty to submit every last possible prior art reference to the PTO, only those that are known to the applicant and material to patentability (that is, that could have made a difference in the PTO's decision). It could be that the submitted references covered everything that the Pierre Wellner reference disclosed, in which case the Wellner reference would be immaterial. Or it could be that the Apple patent only claims subject matter that is patentably distinct from the Wellner reference, in which case, again, it would be immaterial.
Yes, these are all potential issues, but determining the outcome will depend on a lot of information that is not publicly known (such as any Balda/TPK Solutions/Apple licensing deals with the University of Delaware) or that ultimately has to be determined by the PTO or a court (e.g., whether the University of Delaware patents are valid or whether Apple's patent is unenforceable for inequitable conduct). As a result, both of the linked articles are rife with speculation and conjecture. For now, this is pretty much a non-story. Come back if some of these patents are found invalid during reexamination or if Apple gets sued.
He is correct, patents do not require sale or commercial implementation by ANY party to be enforceable. Most patent holders won't go after DIY types who violate for personal use, but that's not because they have no legal ability to do so... rather it is because there is generally very little to gain by doing so other than bad publicity.
Try not to take me more seriously than I take myself.
Thank you. This is also why universities are liable for infringement when they simply use a patented invention in research. Example
Most patent holders won't go after DIY types who violate for personal use, but that's not because they have no legal ability to do so.
Actually, it IS because they have no legal recourse against DIY use of patented inventions. Patents only grant monopolies over commercial exploitation of an invention. You are explicitly allowed to employ the disclosed inventions for your personal use, or for educational purposes. You're just not allowed to sell or give it to others.
Those who can make you believe absurdities can make you commit atrocities. - Voltaire
No. You are wrong. Read the link I posted above you. Universities cannot use a patented invention without a license. Nor can a DIY inventor. Read the statute as well. There is no exception for non-commercial use. The statute prevents anyone other than the patent holder from making, using, offering to sell, selling or importing the patented invention.
35 U.S.C. 271(a):
Except as otherwise provided in this title, whoever without authority makes, uses, offers to sell, or sells any patented invention, within the United States or imports into the United States any patented invention during the term of the patent therefor, infringes the patent.
That make or use part pretty much says you're wrong. One can argue those as defenses, and you certainly aren't going to get much in terms of damages from a hobbist, but the rights granted in a patent is the right to EXCLUDE others as you wish. There is no requirement that any infringement be commercial.
11 was a racehorse
12 was 12
1111 Race
12112
Liar.
No, you are only talking about damages.
Bingo. You are only liable if you are depriving the IP owned from profit.
You may still be in violation but they cannot do anything until they can show damages, i.e. you can't be liable for something there are no damages for.
Where do damages come from? Commercial or public use (whether its educational or not)
Mod me down, my New Earth Global Warmingist friends!
No, its not limited to commercial use. Any public display of the invention could be used to claim damages in court.
It's important to remember there is no criminal law being broken when you use a patent without a license. It's all civil.
So you have to be able to show damages to claim them from an infringer.
Mod me down, my New Earth Global Warmingist friends!
You are still incorrect. Liability does not turn on commercial activity. The patent holder could seek an injunction, which is often just as bad as financial damages. Apple could easily file an infringement suit against Palm to stop them from releasing the phone. Read the case Madey v. Duke. What you are claiming is common and incorrect belief.
That's why I specifically said "Commercial or public use (whether its educational or not)."
The IP owner has to be able to specifically show how the infringer did X which caused the IP owner to lose the ability to do Y.
Good luck telling a judge that you THINK someone is infringing on your patent in their basement for their own use and you want in on the action because you're legally entitled.
What are you, an RIAA lawyer?
Mod me down, my New Earth Global Warmingist friends!
The IP owner has to be able to specifically show how the infringer did X which caused the IP owner to lose the ability to do Y.
I don't know where you are getting this requirement that the patent holder has to suffer some type of damage. That is completely untrue. Read the statute that I showed you. There is nothing in it that says damages are required before bringing a lawsuit. Then read that case like I told you to.
Good luck telling a judge that you THINK someone is infringing on your patent in their basement for their own use and you want in on the action because you're legally entitled.
Suing someone who you think is infringing is a different issue. That has to do with discovery. But once again I will point out, a DIY inventor in his basement cannot use a patented invention for his own use/research without a license or the risk of an infringement suit. The argument here is that the DIY inventor should be forced to buy the invention from the patent holder before he is able to use/research it. Sure, no one would probably find out about a DIY inventor but that again is a totally different issue.
And since you asked, I am a law student. And as far as I know, the RIAA deals with copyrights, not patents.
Any public display of the invention could be used to claim damages in court.
Public display? You clearly have no idea what you are talking about. Public display is a copyright law thing, not a patent law thing.
Please stay in school longer.
From your link:
The Federal Circuit disagreed and pointed out that in Roche v. Bolar[3] and other cases it had held that although an experimental use exception as crafted in the nineteenth century continued to exist, it was a very narrow one for example âoeto satisfy idle curiosity or for strictly philosophical enquiryâ.
and then
the act does not qualify for the very narrow and strictly limited experimental use defense.
So, as you can see, you were arguing for me the whole time, you just didn't know it. :)
Mod me down, my New Earth Global Warmingist friends!
Actually, it IS because they have no legal recourse against DIY use of patented inventions. Patents only grant monopolies over commercial exploitation of an invention. You are explicitly allowed to employ the disclosed inventions for your personal use, or for educational purposes. You're just not allowed to sell or give it to others.
And you are encouraged to do this, improve the patented method, and get a patent on your improvement.
The court noted that even projects undertaken without direct commercial application often âoeunmistakably further the institutes legitimate business interests ... These projects also serve for example to increase the status of the institution and lure lucrative research grants, students and faculty.
You don't actually believe that Palm could argue that their phone development is solely for its amusement, to satisfy its idle curiosity, or for strictly philosophical inquiry do you?
Dibbs!! "huevOS: it's a kick in the eggs!"
No, you are still incorrect. Experimental use as a defense is, as you quote, very narrow and extremely strict. An individual infringing a patent for his own benefit, i.e. to use the patented process or manufacture, does not qualify for an experimental use defense and is liable for damages.
There are only two lines of defense for the builder, and both are pragmatic and not legal in nature: (1) the patent holder must become aware of the infringement in order to file suit and (2) the patent holder must see it as worthwhile to engage in such a suit. Since the private citizen infringer is not likely to interfere with the market, and since he likely has no assets worth winning, there's little to be gained in the suit.
All of that changes once that person decides to share that information with others. IAAL, and the law student is correct, if sophomoric in fumbling around the language.
Making an improvement does not cure infringement. Generally, you must still license the original patent in order to have clean hands in filing the improvement claim. The experimental use exception will not carry most patents through to the end. You can prepare a proof of concept under the extremely narrow and limited experimental use exception if you meet a variety of judicially-mandated standards, but you cannot prepare for introduction by beginning production, distributing prototypes to third parties for testing, or any other form of advancement.
If your patent for the improvement still requires that the underlying patent be involved, you still must have permission to use that underlying patent--you can't simply introduce the "improved" version fully of your own accord. Your patent covers only the improvement (the delta space between the original patent and yours) and not the whole apparatus.
The only value to an improvement patent without having ownership or a license to the underlying patent is to prevent the first patentholder from improving their invention in the way that you have patented. In this way, improvement patents are usually sold back to the patentholders of the underlying patent for money--the improver never actually does anything with it himself. The exception to this is for patents nearing expiration, in which case the improver waits until he no longer owes royalties to begin to act on the patent.
Oh, look. The 'innocent' little Apple Corp is just like every other trendy do-gooder - appeals to the mass that dislike wealthy companies, and they themselves end up being no different. I won't say I told you so (or will I?).
You may still be in violation but they cannot do anything until they can show damages, i.e. you can't be liable for something there are no damages for.
Don't quit your day job to become a lawyer.
Assuming the patented invention was a device, one would assume that purchasing it would grant you authority to use it. If it was an idea, well...that's a whole nother can of worms that isn't popular around here.
The Redundant mod must be cause that person got in a goto loop.
REMEMBER PEOPLE, always go down with GoTo
heres a fix to the above:
int i = 0
1 File paper
2 Wait
3 ???
4 Profit?
N: if i 500 ? GOTO 2; i++ : return;
Y: !!!!
O.o
Apple got their multi-touch tech thru acquisition of Fingerworks, which had had it's own multitouch patents and sold products for 5 years before iPhone. And they still employ the original patent holder as far as I have read.
While there may be conflicting patents, like the patent office would not check what they've already given out, they bought recognized patents several years in advance.
many patents are process patents... equipment used to make something. That's what many of the electronics patents we see in the news really are... you can't make product A without overcoming problem B that needs tool C... prove you DIDN'T use that tool or pay up for the patent. You can infringe on patents you USE to make things that you don't directly sell.
Good luck telling a judge that you THINK someone is infringing on your patent in their basement for their own use and you want in on the action because you're legally entitled.
What are you, an RIAA lawyer?
Actually under patent law you have to demonstrate that a profit was made that you should have been entilted to. Patents are more designed to promote the sharing of ideas by protecting the idea so its owner can cover his expenses for discovering/inventing it.
Look into Dave Sturman's research in the mid 80's. He was using a Dataglove for gestural research. The Media Lab made a demo tape of him using gestures to pick menu items. I probably still have a copy of it kicking around somewhere.
What the hell does it matter it's frikin Apple so by it's very nature it has got to be
A: Crap
B: someone else's property
C: It's apple (CRAB APPLE)
Pick any three of three
You mean someone using a laptop that isn't black or headphones that aren't silver actually annoys you?
You related to Henry Ford or something?
The whole question of the validity of the current patent system should be the topic here, not whether Apple is likely to abuse it... so far as I know Apple's only used their patents defensively (have I missed something?).
Yes, there is a purchasing exception. If I sell you something that I have a patent on, or from someone that I have given a license to my patent, I am implicitly granting you a license to use it, resell it, etc.
Technically, you're not allowed to patent ideas, unless they are part of a process (which is the current requirement, see In Re Bilski for the full requirements, at least until SCOTUS picks it up), then you would be allowed to use, resell the total process. If you ripped out the "idea" from the rest of the process, it would depend upon their patent as to what you could do with that. That's an interesting concept though, if their patent isn't written correctly, it could be possible to pull out a computer program or algorithm by itself without infringing (the patent, says nothing of copyright).
11 was a racehorse
12 was 12
1111 Race
12112
Was the University of Delaware responsible for the technology behind that TED talk on multitouch interfaces? I recall seeing that long before Apple used it. In fact, wasn't the Surface project announced before Apple did it?
Some company patented a chapter out of PhD thesis adding one innovative claim to 12 existing steps. Neither I or my university had the resources to battle it - it wasnt a big money maker. Happens a lot.