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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.'"
As if anyone would actually read up on something before commenting? /. is a great example of this...
I read articles months ago with what Apple was actually complaining about (buttons, etc.)... pinch and zoom was never an issue. The media says and the sheep follow....
On This hour of As The Bezel Turns will Steve Jobs really come back from the dead? Will we finally know if Tim Cook switched the paternity result test disowning his own sons Larry Page and Sergey Brin? Will the wedding of Melissa Meyer and Jerry Yang be stopped at the eleventh hour by her bitter rival Carly Fiorina? Did Samsung CEO Kun Hee Lee recover from his sudden bout of amnesia?
Oh, nevermind, it's just another rehash of the fucking patent trial. Please make it stop.
I submitted this article because firstly this has been such a huge story in the mainstream press that it's good opportunity to investigate how reliable the information coming from them about tech matters is and secondly because there is a lot of confusion even among geeks about what was at stake in this trial resulting in a low signal to noise ratio in the discussions. Personally I do also believe we are at a defining moment in the modern computing industry so even if this lawsuit may end up being of little to no importance the close attention is warranted.
If all else fails, immortality can always be assured by spectacular error.
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 can absolutely guarantee you that there will be no post for this article shedding a new insight or angle that hasn't already been posted twice before. The mainstream press has reported the story wrong but they report every technology story wrong, so nothing new there. And how can this possibly be a "defining moment"?? There have been thousands of patent cases won and lost in the past, and there will be thousands more in the future, and the result of this case seems to not be unusual or trendsetting in any way at all.
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
Meh, maybe someone will actually read the article and take away a new insight or learn something they didn't before, I know I did. I'd call that a win. The comments here will be ... well like they always are, good or bad that's Slashdot.
I don't think this court case is a defining moment, but the rise of smartphones and tablets is and at te very least all these court actions expose what the main players are thinking, where they come from and where they want to go. At the same time there's the entire discussion that keeps raging about patents and what should and shouldn't be patentable. I think it's definitely interesting and worth following closely. Also: huge arguments about tiny details, it's what geeks do best.
If all else fails, immortality can always be assured by spectacular error.
The note at the end:
In an article complaining about how the press were so wrong, the author made a factual error. Perhaps he should have spent more time in "Depth", "reflection" and "serious research" that other authors are apparently lacking!
The real "Libtards" are the Libertarians!
Wait, so the "news" got the facts wrong and didn't bother doing even a little bit of research for their stories before "reporting" their "news"? I'm *SHOCKED*. Shocked, I tell ya!
Yes, but the lawyers for both sides are getting richer. That's what's important.
Any insufficiently advanced magic is indistinguishable from technology.
Personally I do also believe we are at a defining moment in the modern computing industry
There have been many "defining" moments in modern computer history.
What's so defining about this particular moment with its clone army of touchscreen phones?
so even if this lawsuit may end up being of little to no importance the close attention is warranted.
This lawsuit is important becase two 800 lb gorillas went nuclear with injunctions instead of settling with the usual cross licensing agreement.
Which is to say, why they are fighting is less important than the fact that they are fighting.
Apple injunction hearing against Samsung phones set for Dec. 6
Hopefully we don't have any more articles about the case until then.
[Fuck Beta]
o0t!
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.
Yes, but the lawyers for both sides are getting richer. That's what's important.
No. That is just the side effect.
Trust me, I'm an engineer.
There have been many "defining" moments in modern computer history.
What's so defining about this particular moment with its clone army of touchscreen phones?
Look around on trains and subways or coffee shops: personal computers are going mainstream in a way they haven't before, crucially even among those we would consider to be tech-illiterate. Like the Mac (or Lisa) decades ago(*), we're defining a new way of interacting with our computers that'll probably be with us for a good long time and it'll impact more people than ever before.
(*) Because I know someone will bring this up, yes there was Xerox but the Mac, with all the changes it made to the Xerox model, was the one who went out into the world, got copied by everyone and became the archetypal GUI.
If all else fails, immortality can always be assured by spectacular error.
From the jury foreman:
"One of the most decisive pieces of evidence was reading the minutes for myself of a meeting that was held at a very high level between Google executives and Samsung executives.
It was for a tablet and Google was concerned that for the sake of their operating system that the look and feel and the methodology that they [Samsung] were using to create their tablet was getting too close to what Apple was doing.
And in the memo themselves - remember this was minutes - they stated that Google demanded that they back away from that design.
And later there was a follow-up memo among themselves, these executives, and in black and white it says: we elect to not pass this information down to the divisions that were actually involved in the design.
So, from the sake of the engineers they went merrily along continuing their design not given any orders to back away.
They knew nothing of that meeting. To me that kind of raised a light bulb in my head that when I got in the jury room I wanted to read the minutes of that meeting myself.
When we went into deliberation in the jury room we not only had all the physical evidence of everything that was presented, but we also had sealed source code in its entirety from both sides, we actually had the memos that were talked about in the trial... and there was a piece of evidence after a piece of evidence that just clearly stacked up. "
http://www.bbc.com/news/technology-19425052
I think there's a "third ideal form" in the Apple vs. Samsung case -- the Platonic Idea of a generic smartphone.. In other words, what any object/ device needs to exemplify in order to _be_ a phone or tablet in the modern world. In my scheme, the iPhone would be an approximation of this Ideal, even if the Samsung phones resemble them both. It should not be a crime to imitate a generic idea. No one should have a monopoly on an idea.
David C. Baird theunspokenyes.com
If the laws did not exist there would be nothing to work out. This isnt a case where any sort of attack or theft has occured after all. It's a dispute over a statutory monopoly privilege - it's a problem invented and created by lawyers many of whom profit from it.
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Friends don't let friends enable ecmascript.
But it is the same group of bastards that make the damned laws in the first place. It's all a scheme to shake everyone down for more money.
now we need to go OSS in diesel cars
Without laws, society is defined by who has the biggest club - kid of like our current legal system.
When you are dancing with wolves, never limp
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.
No, that's the intended effect. Why do you think so many politicians are lawyers? So they can write laws that earn trillions for their fellow sharks. Same reason I'll never be out of a job in IT, the people that make electronics will never make it so that the average person can do anything interesting with it.
Learn to love Alaska
You don't understand how patent claims work. You can't just take one sentence out of a claim and say that the overall patent covers whatever's in that sentence.
I recall fairly vividly playing around with a mandelbrot set exploration program which used a single left click to zoom in on the area centered on the click. This would have been in the 1990's.
File under 'M' for 'Manic ranting'
Hrm, that "litany of lies" seems rather informative to me...
Any sufficiently advanced incompetence is indistinguishable from malice.
But at least the clubs used in our current legal system are metaphorical. I much prefer them over the very real clubs that would bludgeon me to death because some other tribe is mad that I picked berries on their side of the river.
And the serious research in TFA is the author asking a guy on Twitter...
Very interesting interview with the jury foreman on the BBC.
Especially his statements like:
"The jurors wanted to send a message to the industry at large..."
"And in example after example, when we put it to the test, the older prior art was just that. Not that there's anything [wrong] with older prior art - but the key was that the hardware was different, the software was an entirely different methodology, and the more modern software could not be loaded onto the older example and be run without error."
"And so consequently, when we looked at the source code - I was able to read source code - I showed the jurors that the two methods in software were not the same, nor could they be interchangeable because the hardware that was involved between the old processor and the new processor - you couldn't load the new software methodology in the old system and expect that it was going to work. And the converse of that was true."
I hope Samsung's lawyers are watching.
perhaps samsung should give him a free SGIII for his trouble, he seemed to have "knocked that out of the park" so to speak.
I think right after creating the iphone would have been the most optimal point, by that time it would have already created it's shockwave, but none of the after effects would have been created by android following it....
He spends half the article complaining about supposed misreporting of "rounded corners" as an issue and then admits that in fact the jury did decide in favor of Apple's design patent on the rounded corners (qualified by equally dumb things like a "flat surface", and a "grid of icons", but that hardly makes the reporting of it sensationalist).
Why did the jury foreman consider Google's opinion to be the arbiter of this case? What if Google were just being over-cautious? That was likely the Samsung boards opinion, and why they chose not to pass this onto the engineers. From the BBC article it seems that the Jury's decision was that if Google and Apple says its so - then it must be so.
Every time I read statements from the jury foreman - they seem to be evolving - with the news stories finding holes in his previous statements.
What amazes me is his statement on why they did not consider prior art:
"the software was an entirely different methodology, and the more modern software could not be loaded onto the older example and be run without error."
So because they could not run the software from a device produced in the 2010s on a device produced in the 1990s - it was not considered as prior art... astonishing.
"the software was an entirely different methodology, and the more modern software could not be loaded onto the older example and be run without error." So because they could not run the software from a device produced in the 2010s on a device produced in the 1990s - it was not considered as prior art... astonishing.
I've just been reading that article and the whole thing just reads like a train wreck. Although I understand that these sorts of interviews cant then be used in the appeal in the US?
This also sticks out in that interview:
Do you think if you hadn't been on the jury then we might have ended up with a very different verdict?
I think so. But let's not say me specifically.
Let's say if there had not been an individual who had the technical background, and there had not been an individual who had gone through the process, the verdict might have been different - or it might have been the same.
I believe that the jury system in this country stands. The individuals would have ultimately come to a verdict. It might have been a lot longer.
But what definitely would have been required is passing more questions to the judge and having them come back. In our case we didn't have to.
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A brief history of how the first legal system actually sprang up (thought to have happened in southern England)... People argued about stuff, and couldn't agree. The community said "fine, we'll have a big meeting on top of this hill, and we'll decide who's right". In those days, who was right was decided based on how many people you could get to swear an oath to god that you were right, and not based on facts and juries, but it was a start. Legal systems exist exactly because people couldn't sort it out between each other, so a higher power was made to decide who was in the right.
In the end, the patentsystem sucks, and Apple has just grabbed the runner-up spot on my list of companies I don't buy products from (and even with all the lawsuits flying around, they still have a looooong way to go if they want to take over the number-one spot from Sony).
They could have worked out between themselves. But they didn't.
"Working it out" is driven by your motivations.
I had dealings in the 80s on the receiving side of an IBM patent suit (working for Commodore). They hit us up with all sorts of patents. And over 90% were bogus, based on various criteria (doesn't apply, prior art, etc). But IBM's goal was basically eliminating themselves as a target, not taking all of your money or trying to block your product. So they had a flat license fee for 3+ patents. And an inevitable part of that fee negotiation was securing a cross license for your patents. They were pretty nervous about someone coming along with some big patent hammer and going after them.
And there was another concern -- when you know many of your patents are fairly bogus, you never really want to go to court. IBM in the mid-80s had been taking full advantage of the gold rush that was the start of the PTO allowing software patents without having a single examiner "skilled in the art" of software engineering. They had a crazy number of patents, but if they had established a record of lots of patents being tossed out, it would have been publicly embarrassing, and potential to cause all sorts of licensees to re-negotiate. Settling these things out of court keeps the proceedings fairly civil, and very private.
If Apple's still following Steve Jobs plan to kill Android, their goal isn't simple co-existence and getting paid for what they're due, but blocking Android where possible, creating FUD otherwise. This suit began well before Mr. Jobs died, and it was hardly the first -- Apple's been suing Samsung everywhere. And, in general, losing.
And of course, if you don't think you did wrong (or you're very sure your opponent doesn't have a strong case), you may well fight back. That's what got me reading 30+ IBM patents at a time back in the 80s... IBM was after Commodore for the Amiga, which wasn't based on any the IBM PC patents they so easily pressed against most computer companies. Some was also positioning -- IBM was after cross-licensing, and if the Amiga wasn't covered by IBM patents, or perhaps very few, that changes negotiations, or even leads to court cases (you're not going to court to invalidate 100 patents, but you might if you only believe 2 or 3 actually apply, and those have ample prior art).
-Dave Haynie
It did actually involve rounded corners -- that became the focus of many pundits and bloggers, simply because that was such a public thing in Europe, the various "it does", "no it doesn't" decisions over the Galaxy Tab vs. the iPad, the "Community Design" that doesn't look like either one of them, etc.
This was on the table. The jury rejected it -- they agreed with the UK judge: the Galaxy Tab is just not as cool as the iPad :-)
-Dave Haynie
Unattainable utopia of neckbeards and greasy ponytails?
You don't get a 20 year patent for merely "thinking about something". You actually have to invent something.
Get over it?
You first. Restrict yourself to 20 year old tech. Then get back to us.
A Pirate and a Puritan look the same on a balance sheet.
Yes. This is a defining moment. If we leave things to the corporate shills, then the future will be owned by a single company in a much more destructive manner than what we saw last time with Microsoft.
A Pirate and a Puritan look the same on a balance sheet.
"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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Doesn't matter. Statements made by the jury after a trial mean nothing. They could say "neener neener we just didn't like samsung" and the verdict would stand.
It's easier to fight for one's principles than to live up to them.
The patent system is not there to reward time and effort. It is there to reward innovation. Many things are obvious but don't get done because of a lack of time and effort. We anit-patent fanatics have a high bar for inovation. There are over 9 million software developers in the world. Every day these developers put in time and effort. If everything they did was patented there would be over 3 billion patents published each year. (1 invention per day * 365 * 9 million = 3.285 billion)
It does mean something. The foreman was acting as an expert witness for the other jurors, but was not admitted by the judge or any lawyer. So his opinions as a non-expert were instrumental in influencing the case. IANAL but this sounds like very good grounds for a re-trial or an appeal at least.
I'm talking specifically when he is talking about what defines prior art (you're supposed to ask the judge that, or the lawyers, not assume you know the answer), and when he claims he could read source code so he was able to explain why the "methods in software" were different (he needs to show non-obviousness) and specifically that they weren't "interchangeable" because of the processor. A software engineering expert witness could explain how differences in code may be inconsequential to the function (a while looping from len to 0 versus a for looping from 0 to len when order of traversal doesn't matter, for instance, but the code looks quite different), and how the code is likely in C or another portable language and the processor is (in general) of no consequence because the compiler generates machine-specific code. This last one is a big issue for me: unless the foreman is an extremely well trained and experienced programmer, he's unlikely to be able to find issues in code that would actually conflict with a given architecture, such as word size assumptions, endianness assumptions, etc. These aren't obvious in code. And further, I don't think this actually merits consideration as not the prior state of the art. If this was the state of the art at the time, an expert would easily be able to reproduce code to run on another processor. This leads to obviousness, which would indicate that it is prior art.
Sure this particular issue wasn't instrumental in the whole case, but we can't know the extent to which he poisoned this jury.
I disagree. If the Google model wins not only will we end up with a system where device support is non-existant, app quality is low and letting developers make money is a low priority (the current state of Android "ecosystem"), and we'll all end up paying for it all by trading away our privacy and our data because that's the real priority and reason Android was ever even developed. I prefer the Apple way because I think it'll end up creating a much better (if not exactly ideal) environment for both end users and developers. Of course if a third path should open my opinion might change but that doesn't look likely any time soon.
ALL remaining parties are "corporate shills" by the way. The true free as in speech alternatives died at the hands of the Android juggernaut.
If all else fails, immortality can always be assured by spectacular error.
Yes, but the lawyers for both sides are getting richer. That's what's important.
No. That is just the side effect.
Not to the lawyers.
Any insufficiently advanced magic is indistinguishable from technology.
Personally I do also believe we are at a defining moment in the modern computing industry
There have been many "defining" moments in modern computer history.
What's so defining about this particular moment with its clone army of touchscreen phones?
I'll respond, even though this is a two week article (I was on vacation..)
I feel this moment is defining not due to the actual results of the Samsung case but due to the type of precedent it sets. It represents a clear shift, showing that the courts are happy to protect this sort of thing now, while they didn't back in the 80s when Apple and others were filing (and losing) their "Look and Feel" lawsuits. It opens the door for far more litigation over interface patents.
Whether Samsung has to change the interface or design of some phones... meh, that's not really historic. It's the precedent that this sets that matters.