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Pinch-to-Zoom and Rounded Rectangles: What the Jury Didn't Say
CharlyFoxtrot writes "Steve Wildstrom at Tech.Pinions takes on some of the what he calls folklore surrounding Apple v Samsung, investigating what was and wasn't part of the case and how the media got it wrong: 'There's one serious problem with the first sentence, which was repeated dozens of times in stories in print and on the Web. Apple only has a limited patent on the pinch to shrink, stretch to zoom gesture that is a core element of touch interfaces. And the 826 patent wasn't in dispute in the Samsung case because Apple never asserted it. In fact, this particular patent does not seem to be in dispute in any litigation.'"
They didn't have to take it to court. They could have worked out between themselves. But they didn't. We have laws for when people don't work it out themselves. Now I disagree with a lot about patent and copyright laws but if you don't understand how laws contribute to human society you need to study human behavior more. Ask yourself, how is a society even defined without laws? That's what makes society functional. Laws provide a common framework of expectations.
I'd like to point out that it seems to me that patent infringement and considerations of the prior art and obviousness are being inverted lately. Prior art should be a very wide concept, because of obviousness. As I understand the patent legislation that I've read, if it's obvious to any expert given the current state of the art (later deemed the prior art), it doesn't meet patentability criteria. Instead, with modern patent trolls and people like the foreman in this case, everyone seems to be making arguments that would dramatically shrink what defines prior art and obviousness by requiring an identical and exact copy of an existing thing (which could, however, be a claim for a copyright infringement), rather than allowing for obviousness to any expert. Simultaneously, when considering infringement, which should be that of an identical and exact copy in part or whole of a patented thing, it seems like people are trying to apply obviousness by claiming "well, it's obvious if you changed our patent in these ways that they would be infringing, so you see, they're infringing". I'm pretty sure it's supposed to work the other way around.
Does this have such a resounding life-or-death import on the tech industry to warrant such attention?
Yes, yes it does. The current patent system is choking the life out of the tech industry. At first, everyone said they were just building up patent war chests for "defensive purposes". Patent trolls destroyed many of the little guys, but the big companies were largely untouched. Now Apple has unloaded it's patents against Samsung - both major companies, both with large swathes of patents, and Samsung at least has its fingers in many, many tech pies. It's not little companies getting shaken down for lunch money any more, it's superpowers taking swings at each other. And with things like the pre-emptive ban of Samsung's products, it's not a tidy little gentlemanly fight in the courts, either. The patent war just went hot.
Now, that's all a little dramatic, but it's essentially true. This case could quite possibly be the tipping point for the patent system - one way or the other - and people in technical fields are (or should be) extremely interested in the outcome.
Just because you're paranoid doesn't mean there isn't an invisible demon about to eat your face
And more crucially: Is that claim negated by prior art? And should it have been considered obvious to a "person skilled in the art"?
From the comments of the jury foreman, he (they) seemed to misunderstand what prior art actually is. And thus had a conflict of reasoning in applying the patent loosely to the device in question, while requiring prior art to exactly match the device in question. Whereas, the prior art should have been loosely matched to the patent, and not to the infringing device - thus negating the claim in the patent. (Assuming the prior art did actually apply.)
I've noticed that people involved in the patent system (lawyers and inventors) seem to develop an increasingly more stringent view as to how closely prior art must be to invalidate a claim. Reworded, that means that their interpretation of novelty has the bar lowered to the point where the concept of obviousness gets watered down to be meaningless. So any 'invention' that is different in the most minor or pointless way becomes fair game for an IP grab.
Now that would be fine if infringement of the patent was taken as strictly, but that doesn't seem to be the case. If the claims are looked at more broadly when applied to "infringement" than they are when applied to the prior art that would invalidate them; then the patent system becomes a stumbling block rather than a way to 'promote science and the useful arts'.
The problem with that reasoning is the assumption that the law in question is reasonable in the first place. "Working it out" may have involved a ridiculous settlement far exceeding any reasonable demand in a world where that law did not exist.
Let's say there was no patent system. If that were the case, there would be no dispute in the first place.
Now, let's say the patent system did exist, but had a much higher expectation of "inventiveness" and "non-obviousness" than it currently does. Again, the dispute would be easily resolved as it would be clear where copying had taken place.
However, the current system is comprised of ambiguous laws and patents that have so little (if any) inventiveness that they are almost entirely comprised of prior art (and anything left is obvious to anyone 'skilled in the art'). Now the courts are forced to sort everything out and verdicts become pot-luck.
With laws that bring entitlement where entitlement should otherwise not exist, there will always be a conflict that cannot be resolved anywhere but in the courts. Samsung had no way out, but to either pay Apple money, or go to court and take the chance of either paying or not paying. Apple held all the cards and had no reason to back down.
They are advocates. That's what they are supposed to do.
If they took your money but not your cause that would be dishonest.
Please understand. Nobody cares WHICH patents were used to squash competition like a bug. On the one side, Apple and their partisans only care that competition was squashed. They don't care how.
And on the other hand, actual thinking people only care that not just the patent system as it is presently tortured, but the very IDEA of patents is an evil, stinking, obscene insult to humanity. It is corporate welfare. It is a denial of nature and evolution. It strangles competition. It does not further the advance of useful arts in ANY WAY. It stifles the advance. While accelerating transfer of wealth to the wealthy, It hurts the economy. It props up the cancer of bloodsucking lawyers - not the lawyers who participate usefully in addressing criminal acts and REAL civil transgressions. It gives the finger to small business already reeling under the assault of the System. It even uselessly damages very large corporations like Samsung who employ many people. And Samsung will quickly move to pass the cost along to the consumer if this decision stands.
Only idiots believe that patents encourage innovation. Patents strangle innovation. In the absence of patents, innovation would flourish because it confers advantage. The real advantage comes not in planting your boot on the other guy's neck to get a competitive edge at the expense of everybody else. The real advantage comes from making a superior product at a superior price, for its OWN sake.
N.B. - most people, if they interviewed me skilfully, would conclude that I am to the right of Ghengis Khan. In actuality I deny the whole right/left fraud. If I have one message, it is: don't filter every single issue through the prism of some presumed regimented Rule Of Everything imposed from outside your own conscience.
"I think the jury did an admirable job making sense of the case they were given. They certainly did better than much of the tech media, which have made a complete mess of the verdict."
The jury *completely* screwed up. They started by ignoring the prior-art argument[1] samsung made, and then the foreman proceeded to sway everyone[2] with an "I got my own patent so listen to me" bullshit. The jury was an ill-fated catastrophe from the beginning of deliberations.
[1] http://www.techdirt.com/articles/20120826/23534320161/applesamsung-jurors-admit-they-finished-quickly-ignoring-prior-art-other-key-factors.shtml
[2] http://www.eetimes.com/electronics-news/4394863/Jury-foreman-recounts-Apple-vs--Samsung-case
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