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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.'"
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.
The Apple '915 patent, which was at issue, does assert a claim to "pinch/zoom." Claim 8 includes:
"National Security is the chief cause of national insecurity." - Celine's First Law
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.
Nilay Patel of the verge, an actual honest-to-god copyright lawyer not just someone who plays an expert on the web, disagrees in his aptly named "The myth of pinch-to-zoom: how a confused media gave Apple something it doesn't own":
"So let's just be extremely clear about this: the jury ruled that 21 of 24 accused Samsung phones infringed claim 8 of Apple patent 7,844,915, which specifically covers a programming interface which detects if one finger on a screen is scrolling or two or more fingers are doing something else. It is one possible step along the road to pinch-to-zoom, but it is definitely not pinch-to-zoom itself. And — crucially — it may not be that hard to design around."
Maybe read up there too ?
If all else fails, immortality can always be assured by spectacular error.
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
In exactly what way is "scaling the view associated with the event object based on receiving the two or more input points" not "pinch to zoom?" I'm not defending the patent - there's more than ample obviousness and prior art. The link you gave simply describes ways around the claim to "pinch to zoom," it doesn't disagree at all.
The claim very clearly does describe "pinch to zoom." To say that it doesn't is simply disingenuous. That's different than saying it's a valid claim.
Oh, BTW, the link's counter-example, scrolling with two fingers, doesn't work with Google Maps, it causes a change in pitch instead of scrolling (at least it does on my non-Samsung, Android phone, running ICS).
"National Security is the chief cause of national insecurity." - Celine's First Law
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'.
Yes, but the lawyers for both sides are getting richer. That's what's important.
Any insufficiently advanced magic is indistinguishable from technology.
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.
"Ah, but it doesn't mention pinching"
It doesn't have to. It mentions "scaling," which covers both pinch and spread. Additionally, the other counter-example in the link you provide draws a distinction which may not even exist - between "scroll" and "pan." Where's the definitive, legal, definition which say that scrolling can only be vertical or horizontal? Why can't I scroll diagonally?
"National Security is the chief cause of national insecurity." - Celine's First Law
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
No, "scaling" is what the interface does as the result of a gesture, pinching is what the fingers do which again is not defined in the document. There's a reason the patent is called "Application programming interfaces for scrolling operations": it focusses on scrolling and how that operation is distinguished from a gesture. And a gesture is just defined as having 2 ore more input points without further elaborating on the state of those input points.
Scrolling is defined in the full patent text as :
"Scrolling is the act of sliding a directional (e.g., horizontal or vertical) presentation of content, such as text, drawings, or images, across a screen or display window. In a typical graphical user interface, scrolling is done with the help of a scrollbar or using keyboard shortcuts often the arrow keys. Gesturing is a type of user input with two or more input points. Animating operations include changing content within a given time period."
So, they only mention the 2 axis.
If all else fails, immortality can always be assured by spectacular error.
They are advocates. That's what they are supposed to do.
If they took your money but not your cause that would be dishonest.
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.
"They are advocates."
You misspelled "whores." HTH! HAND!
"National Security is the chief cause of national insecurity." - Celine's First Law
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
For those following along at home, this is what happens when a lawyer does describe a pinch to zoom gesture :
"1. A method, comprising: detecting at least two first contacts on a display surface of a multi-touch-sensitive display device; detecting a first motion associated with the at least two first contacts, wherein the first motion corresponds to a multi-touch gesture; adjusting a parameter of a graphical object in accordance with the first motion; detecting a breaking of the at least two first contacts; after detecting the breaking of the at least two first contacts, detecting at least two second contacts on the display surface; detecting a second motion associated with the at least two second contacts, wherein the second motion corresponds to the multi-touch gesture and the at least two second contacts are detected within a pre-determined time interval after the breaking of the at least two first contacts is detected; and continuing to adjust the parameter of the graphical object in accordance with the second motion.
2. The method of claim 1, wherein adjusting the parameter is a non-linear function of a displacement of the first contacts during the multi-touch gesture.
3. The method of claim 1, wherein the parameter comprises a magnification of the graphical object.
[...]"
Simple, right ?!
If all else fails, immortality can always be assured by spectacular error.
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'm *SHOCKED*. Shocked, I tell ya!
Well gambling has been going on in the establishment.
Interestingly, the '826 pinch-to-zoom patent could be more correctly called "double pinch to zoom": it covers a more narrow implementation in which the system recognizes a user doing a pinch-to-(activity) gesture followed by a 2nd pinch-to-(activity) within a preset time, maintaining the activity state in between. A naked pinch-to... activity (or any number of them) isn't covered if the system doesn't explicitly connect the repeated pinches together. This is probably why Apple hasn't asserted it. (And between you and me, an oddly-specific qualifier in an independent claim is almost always is a smoking gun pointing to prior art on the claim sans-qualifier.)
Caveat Emptor is not a business model.
Maybe I'm just more literate than the average reader, but this clearly doesn't cover "pinch to zoom." This allows the user to resume a multitouch operation for a period after removing his fingers from the glass to essentially allow him to continue his adjustment further than he otherwise could.
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'
From what I understand, it's a technicality (which might be another reason to dislike patents, if you will):
Sorry, but no. That's what happens when random slashdotter's try to describe a patent that they believe means "pinch to zoom" when in fact it does no such thing. This patent clearly describes a more complicated gesture.
The reason Apple is not defending pinch to zoom is they didn't invent it. It was clearly demonstrated in the original Ted talk that inspired Apple to peruse multi-touch technology. I've been involved in two situations where I found that one of my patent claims was not valid due to prior art. In the first case, the patent examiner had already approved my claims, and he argued with me that my claims were still valid. He restricted my claims in the most minimal possible way to avoid the prior art when I pushed the matter. That's fine... I think he was trying to be good to a rare inventor who was trying to be honest about prior art. In the second case, my customer (I was a contractor for Zvi Orbach) told me after we'd submitted a patent why it was invalid due to prior art at Chip Express. I called the patent office, and was advised that I should not attack claims I'd filed for a previous employer. I had already quit, in part due to this issue, though Zvi had given me many other reasons to stay away from him.
Celebrate failure, and then learn from it - Nolan Bushnell
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.
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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"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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Truth? What is that? Surely you cannot propose that a system of justice can infallibly determine the truth. A lawyer of course is much less capable than that.
There have been plenty of legal cases where it seems obvious from the facts available that the defendant is guilty of the crime.
Except he is not.
Your lawyer is not there to judge your guilt. He is there to advocate your position in court as part of the process of hopefully finding the truth.
The system may be broken, in particular by the way your pocketbook can influence the results.
But while the system we have sucks, it sucks less than all the others.