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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.'"
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.
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
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.
Read the patent. No, really, it's enlightening and a propos to any discussion on the subject.
It does not claim the "tap-to-zoom" gesture as novel. It claims a specific mechanism that describes how to determine which parts to zoom, when to zoom in or out, and on which part to focus and center; all using various methods and heuristics to determine user intent.
Have you noticed that in say, Mobile Safari, when you double-tap to zoom it doesn't just "zoom in"; it tries to determine which is the relevant content block that the user is selecting and magnifies that, often at the exclusion of the surrounding content. The mechanisms to determine what to do and how to do that is what is claimed in the patent.
The prior art on "tap-to-zoom" is precisely a non-contextual and non-discriminating magnification at the point of contact; which is different.
Yes, reading, it's a dangerous thing.
-dZ.
Carol vs. Ghost