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US Patent Office Invalidates Apple's "Rubber Banding" Patent

Posted by timothy on from the kill-software-patents dept.

bhagwad writes "The patent that was the cause of so much grief to Samsung in the recently concluded trial with Apple has been tentatively invalidated by the USPTO. The challenge was filed anonymously, but it obviously could have been filed by any smartphone manufacturer. Will this have an effect on further proceedings in the case or perhaps more importantly on the inevitable appeal?"

46 of 213 comments (clear)

  1. Finally by RenderSeven · · Score: 5, Funny

    Signs of life from the USPTO

    1. Re:Finally by jkrise · · Score: 5, Funny

      This is what the rascal Florian Mueller has to say: Apple's rubber-banding (overscroll-bounce) patent is still going to go through a lengthy proces before it may or may not be invalidated. There can be more than one non-final Office action by the Central Reexamination Division. Even a "final Office action" is not final at all. It can be reconsidered by the Central Reexamination Division itself, and the last decision by that division can be appealed to the Patent Trial and Appeal Board (PTAB), which used to be called the Board of Patent Appeals and Interferences (BPAI) until recently and is like an USPTO-internal appeals court. Remands by the PTAB to the Central Reexamination Division cause further delay. When the USPTO is done with the patent, its decision can be appealed to the United States Court of Appeals for the Federal Circuit. And theoretically, a Federal Circuit decision can be appealed to the Supreme Court, which doesn't hear many patent validity cases (but does take a look at important issues from time to time).

      Apple has many patents in play against Android. It doesn't matter in a strategic sense if some of them, or even many of them, get invalidated. It just needs to enforce enough of them to ensure product differentiation. The '381 patent covers a signature element of the iOS touchscreen user interface, and Apple is going to fight hard to keep it alive. But at the end of the day it's just one of many patents-in-suit.

      Someone needs to whip this scoundrel a 1000 lashes on his bare buttocks until he understands what shit he is spouting as a so-called 'expert' on patents.

      --
      If you keep throwing chairs, one day you'll break windows....
    2. Re:Finally by Anonymous Coward · · Score: 2, Insightful

      This is what the rascal Florian Mueller has to say:

      I stopped reading there, anything Florian Mueller has to say is irrelevant.

    3. Re:Finally by MightyMartian · · Score: 4, Insightful

      And rather too late. Apple clearly knows that it's idiotic patents won't hold up in the long run. What counts is that a competitor was hamstrung for some period of time. The object of the game isn't to ban products; Apple knows perfectly well that sooner or later the bulk of its patents are going to be rejected. The point is to cripple competition just long enough to release its own products.

      --
      The world's burning. Moped Jesus spotted on I50. Details at 11.
    4. Re:Finally by RenderSeven · · Score: 2

      Yes and no. Samsung hasnt been all that hampered and they've both landed a few blows. Until that $1000000000 check clears I wouldnt say Samsung has been actually hampered, and who can say how much all the press has helped (or maybe hurt). Perhaps Apple was foolish to go after Samsung first, rather than a smaller also-ran player just to build up some case law against a less-capable and less-funded legal team?

    5. Re:Finally by Anonymous Coward · · Score: 2

      Damned if you do... damned if you don't.

      If they go after the small fries, it will be years down the road before the will affect their main competitor (Samsung, at this point). During that time S3, Note2, etc will be "stealing" customers from Apple.

      On the flip side, they go after the big-boy first to stop the leak while it's small, but have a bigger fight on their hands.

      I think they saw what happened last time (Mac vs PC), saw weapons they could use (Patents) and went with it. In one respect, it makes sense. All's fair in war after all. In the other sense, it's easy to lose face due to going to the dark side (Lawyers, lack innovation, spending more money on lawyers than new products, etc).

      Personally, I think this will hasten their slide back into mediocrity (further into?). The conflicting needs to 'innovate' (Siri, Maps, Mini) while also protecting their cash cows have affected their ability to do anything of notice. Everything they are doing right now is "me-too"

    6. Re:Finally by Zontar+The+Mindless · · Score: 4, Insightful

      This is what the rascal Florian Mueller has to say:

      I stopped reading there, anything Florian Mueller has to say is irrelevant.

      Can somebody please offer a cluebat to the BBC, who keep quoting him as though anything he has to say is worthwhile? Thank you.

      --
      Il n'y a pas de Planet B.
    7. Re:Finally by Tough+Love · · Score: 4, Insightful

      Apple genuinely believes Android infringed...

      Apple does not genuinely believe anything except that it must defend its margins by fair means or foul.

      --
      When all you have is a hammer, every problem starts to look like a thumb.
    8. Re:Finally by DragonWriter · · Score: 2

      Perhaps Apple was foolish to go after Samsung first

      Apple actually went after HTC first. They went after Samsung second (but before the HTC case was resolved.)

    9. Re:Finally by Zordak · · Score: 5, Informative

      Signs of life from the USPTO

      This rejection means nothing. Something like 90% of first office actions are rejections. That's just how the USPTO does business, and it's how they've done business for a long time. Even a "final" rejection isn't final. It just means you have to pay more money to keep arguing with the examiner. And you can keep doing that for as long as you're willing to continue paying the fee to go "one more round."

      This is a very run-of-the-mill rejection. The court will probably just ignore it. Until the patent is for-real-finally rejected by the patent office (meaning it's been more than six months since the examiner issued an office action and Apple hasn't responded), the patent is strongly presumed to be valid.

      This ends the educational portion of today's episode of Slashdot. We now return you to your regularly-scheduled trolling, flame-baiting, karma-whoring, and Microsoft-bashing.

      --

      Today's Sesame Street was brought to you by the number e.
    10. Re:Finally by Tough+Love · · Score: 2

      Apple is a morally bankrupt organization. The day it became apparent to all was the day they had their San Jose police friends break down the front door of a journalist. Apple disgusts me. Any further questions?

      --
      When all you have is a hammer, every problem starts to look like a thumb.
    11. Re:Finally by shugah · · Score: 3, Interesting

      By refusing to negotiate and pursuing a litigation strategy on the FRAND patents, Apple is leaving themselves open to a far more damaging counter offensive. On the core telecom patents that define the 3G and 4G (LTE) wireless network standards, Samsung is a middle weight contributor of IP. The heavyweights of the LTE IP are LG, Qualcomm, Intel (via InterDigital), Motorola (Google) and Nokia. Additional core telecom IP portfolios are held by Ericsson, RIM, Huawei Corp and HTC.

      Qualcomm, Ericsson, RIM, Intel, Huawei and Nokia are unlikely to join any IP counter offensive against Apple because they don't sell smartphone handsets, license technology to both sides or benefit from suppressing Android (Nokia/RIM). But LG, Motorola (Google) and HTC have a vested interest in defending Android and between them have substantial IP portfolios. It's important to note that these companies can not refuse to license their Standard Essential Patents, however Apple has so far refused to negotiate and has pursued a litigation strategy. Apple is not totally without ammunition in the telcomm patents; they were part of the coalition that purchased Nortel's IP, but most of the Nortel portfolio was already cross licensed to other standards contributors so are more useful for defensive purposes. Cross license agreements do not however protect Apple from having to negotiate FRAND license fees with the appropriate patent holders. If they refuse to negotiate, injunctions are in the future.

      --
      If you aren't part of the solution, then there is good money to be made prolonging the problem
    12. Re:Finally by shugah · · Score: 2

      Many years is also an exaggeration. If we take Oracle v. Google as an example, Google asked the USPTO to reexamine Oracles asserted patents in February 2011. By April 2012 when the trial started, all but 2 of Oracles claims had been invalidated by the USPTO. 14 months is not many years.

      The process is far from over or certain, but as far as we know, we are dealing with a single patent and 2 claims, where Oracle v. Google (by the time the claims has been narrowed) dealt with (I think) 7 different patents and 20 some odd claims.

      --
      If you aren't part of the solution, then there is good money to be made prolonging the problem
    13. Re:Finally by HiThere · · Score: 2

      Apple is a corporation. Corporations do not have beliefs. Steve Jobs believed that Android stole their look and feel from Apple. (Or possible he believed that it stole something else, it's hard to be certain.) Apple accomodated Jobs belief. Perhaps the current CEO also believes that. Perhaps he's just being loyal to the memory of Jobs. It's hard to tell.

      Their lawyers probably don't believe that anything was stolen. The engineers probably don't believe that anything was stolen. In these cases though we're talking about a large number of people who probably have varying beliefs. And the lawyers probably don't care. It's their job to fight the battles their client chooses. They don't need to care that their client is being unjust and unfair. In fact, IIUC, their code of ethics says that they are supposed to behave as if the client were in the right whether they believe that he is or not. Which is a real bonus to the wealthy who are unethical, but also to wealthy monomaniacs. It's hard to be sure which is being dealt with here. However, even though the corporation is officially the one paying for their services, they represent the CEO, whether it's in the best interests of the corporation or not. (If it isn't, the board of directors is supposed to replace him, not the lawyers to second-guess him.)

      P.S.: I don't believe that this system is fair, just, honorable, proper, or efficient. But I believe that my descriptions are accurate.

      --

      I think we've pushed this "anyone can grow up to be president" thing too far.
    14. Re:Finally by ngg · · Score: 3, Insightful

      Jason Chen was also stretching the concept of responsible journalism pretty thin. His methods (extortion and dealing in stolen property) might be defensible for an expose on, e.g., massive government corruption (where the public interest in stopping an ongoing crime vastly outweighs the crime of stealing documents). But let's not forget that the story he was breaking was what the next version of some company's fucking phone was going to look like. I may not agree with Apple's method of retrieving the phone, but let's not get carried away and act like Mr. Chen was some kind of folk hero. There were no angels in the Gawker/Apple saga.

    15. Re:Finally by John+Hasler · · Score: 3, Insightful

      > This rejection means nothing.

      It means quite a bit: an invalidated patent cannot be the basis for an injunction.

      --
      Warning: this article may contain humor, sarcasm, parody, and perhaps even irony. Read at your own risk.
  2. Wooo by WillRobinson · · Score: 4, Insightful

    Seen this on terminals long ago think they were zerox, while it didnt bounce it did behave like it had weight an friction. Oh I forgot "On a Cell Phone"

    1. Re:Wooo by ibsteve2u · · Score: 2

      Bugs Bunny did it a long time ago, making a hole out of nothing to pop into to get away from Elmer Fudd.

      --
      Orwell: "In a Time of Universal Deceit, telling the Truth is a Revolutionary Act"
    2. Re:Wooo by EdIII · · Score: 3, Funny

      It would be fitting to see Looney Tunes referenced in a patent office filing now wouldn't it?

    3. Re:Wooo by jd2112 · · Score: 4, Funny

      Done. Just filed a patent for "Method for walking on thin air by means of not looking down".

      --
      Any insufficiently advanced magic is indistinguishable from technology.
  3. Hate it by StripedCow · · Score: 3, Interesting

    The annoying thing about it is, rubber banding works sometimes, but not always.
    The rule seems to be that rubber banding is activated only when the display contains scrollable content.
    They should make it behave the same way, regardless of whether the content is scrollable.
    Geez... it really gets me irritated, such basic UI concept and they can't even get it right.

    --
    If Pandora's box is destined to be opened, *I* want to be the one to open it.
    1. Re:Hate it by berj · · Score: 2

      I'm confused. Why would there be scrolling semantics when there is no scrolling? Do you want to see scroll bars when there's no scrolling content too?

    2. Re:Hate it by tomhath · · Score: 2

      It's like any other gesture. It works when you know exactly what to do in exactly the right context. But unless you know what to do in what context, forget it.

    3. Re:Hate it by SuperMooCow · · Score: 5, Interesting

      I think what he's saying is that if there was a rubber band effect, it would confirm that the device accepted his scrolling command but also show him that it's not supposed to scroll.

    4. Re:Hate it by TheLink · · Score: 2

      No because the content not scrolling at all could mean your finger tips are too dry, or you missed etc.

      Whereas if the behaviour was consistent and it rubberbands, it means the OS got your input just fine.

      --
    5. Re:Hate it by Bobfrankly1 · · Score: 3, Informative

      Doesn't the fact that the content doesn't scroll at all (i.e., that there is no rubber banding effect) provide the exact same information?

      Not really. I've had scrollable content not scroll at all because the iOS was stalled out thinking. Then I've had content that looked like it was supposed to scroll but gave no feedback. Made me wonder if the iOS was stalled out again or if it really wasn't scrollable. At least the MacOS has the beachball on the cursor to let you know when the OS is stuck on itself.

      You'd still have to make an "impotent attempt to scroll" to see the rubber band effect so it really doesn't save any steps, and iOS is generally responsive enough that if it doesn't scroll when you try you know that that's on purpose and not the OS lagging behind input.

      The "generally" being in your experience, not in mine nor my associates.

    6. Re:Hate it by cstacy · · Score: 2

      Doesn't the fact that the content doesn't scroll at all (i.e., that there is no rubber banding effect) provide the exact same information?

      Not really. I've had scrollable content not scroll at all because the iOS was stalled out thinking. Then I've had content that looked like it was supposed to scroll but gave no feedback.

      You'd still have to make an "impotent attempt to scroll" to see the rubber band effect so it really doesn't save any step

      You're both holding it wrong.

  4. Same ol' stuff by Anonymous Coward · · Score: 5, Insightful

    Why can't this crap happening DURING the trial?

    1. Re:Same ol' stuff by Anonymous Coward · · Score: 3, Insightful

      Why can't it happen BEFORE the trial is a much better question.

  5. oh dear, uspto..... by P-niiice · · Score: 3, Insightful

    Why can't the Patent Office do their jobs when reviewing these Bs patents the first time?

    1. Re:oh dear, uspto..... by Stirling+Newberry · · Score: 5, Insightful

      Because the USPO is paid for by fees.

      --
      Fugue for Aaron Swartz
    2. Re:oh dear, uspto..... by fuzzyfuzzyfungus · · Score: 4, Interesting

      But isn't that the ideal way to run government? Like a business? Instead of stealing our hard-earned money?

      There are arguments to be made in favor of running certain aspects of government like a business(if our national parks got to set ticket prices according to actual demand, they'd have a lot less trouble with understaffing and overcrowding...); but there are some issues to watch out for:

      1. If you are a business, you have 'customers' and you are beholden(sooner or later) to provide 'customer service'. Be very careful that your 'customers' are the same people that it is your mission to serve and that 'customer service' is the same product that it is your mission to provide. This is a particular problem with government departments that have regulatory functions. In terms of day-to-day interaction, shared professional backgrounds and skill sets, etc. the 'customer' is usually the party who needs to be kept in line; but the mission of the department is the protection of the public(who should be the 'customer'; but who the regulators rarely interact with). In the case of the USPTO, the de-facto 'customer' ends up being the patent applicant, not the vague, voiceless, largely inchoate mass of 'people who don't want inefficiencies introduced by bad patents'. It's natural enough, and likely to progress even faster if the entity is overwhelmed by its caseload, or if there is a revolving door between USPTO examiners and corporate patent attorneys(which, even in the absence of corruption of any kind, the fact that similar skills are required by both jobs tends to mean will happen to some degree).

      (To end on a positive note) The institution of 'Agricultural extension programs', typically associated(in the US) with the research programmes and faculty experts at local Land-Grant Colleges and Universities that operates reasonably successfully as a sort of 'like a business; but in a broad sense' program. Their objective is the improvement of agricultural standards and outcomes in their area, through consultation and expertise on local conditions, pests, etc. along with research made possible in part through access to the data gathered by working with the agricultural population at large, and often offering certain soil testing, analytical, and pest identification services at accessible prices. These aren't "like a business" in the sense that they are run for-profit, and they do have a basic research, R&D, and educational mission; but they are operated as an essentially pragmatic, productivity and profit improving, adjunct to private agriculture in their region.

    3. Re:oh dear, uspto..... by CanHasDIY · · Score: 3, Insightful

      But isn't that the ideal way to run government? Like a business? Instead of stealing our hard-earned money?

      ...

      I really, really hope that's sarcasm...

      If not, I'll make you a deal: I'll get the government to stop "stealing your money," and in return, you stop using the services and infrastructure that "stolen money" pays for.

      --
      An enigma, wrapped in a riddle, shrouded in bacon and cheese
  6. About time by onyxruby · · Score: 4, Insightful

    The patent situation has gotten completely out of control. What was once the very capitalist means to inspire and reward creativity is now the very anti-capitalist means to stifle competition and commit lawfare.

    The patent system need to be reformed as badly as any government run bureaucracy ever has. It's not just in the US either, these problems are epidemic on a world wide scale. When lawyers become more important in product development than engineers you know the system has reached a crisis point.

  7. Re:What is it about? by alen · · Score: 2

    on iOS there is a cool effect

    say you want to refresh a page. you scroll down just a bit, let your finger off the screen and the data/text bounces back and forth a bit like a rubber band

    pure eye candy and cool

  8. Re:What is it about? by Vicarius · · Score: 5, Informative

    What does the patented "Rubber Banding" do...

    Rubber banding happens, when you try to scroll past the content, your screen will scroll a little beyond the content and then bounce back. This gives the user a visual feedback that device is responding to the input (trying to scroll) and that device is not frozen; thus, making the experience less frustrating.

  9. Uncited Theft from Academia by Anonymous Coward · · Score: 5, Interesting

    Look in HCI this stuff has been done since forever. Academics got really interested in touch technologies in the early 2000s. They've been used spring decay to make "nicer" and more natural interfaces ever since.

    Many patents out there are IP theft. They are stealing from public institutions and patenting technology that has been developed in academia.

  10. Re:they should pay. by Jintsui · · Score: 3, Funny

    I'm pretty sure some Apply employees already do that..

  11. Re:Someone's getting fired... by fuzzyfuzzyfungus · · Score: 2

    Don't worry, 'rubber banding' on all mainframes with touchscreen interfaces is still safe...

  12. Re:What is it about? by ToastedRhino · · Score: 5, Informative

    You're describing pull to refresh, not rubber banding. It's a different, but I would agree somewhat related, idea than the rubber band effect, and Twitter actually owns the pull to refresh patent, not Apple.

    Rubber banding is when you get to the end of a scroll view, the view continues to scroll a bit past where it's supposed to while showing a generic background (it's now the grey linen on iOS, can't remember what it used to be), then bounces back to the top of the screen. This provides a visual indicator that you've reached the end of the scrollable area.

    I won't argue that this should be a patentable idea, but if it were only "eye candy" and not functional in some way every other smart phone maker wouldn't be trying to/have already implemented (and removed for fear of litigation in the case of Android) it.

  13. Re:And at the end of the day ... by MightyMartian · · Score: 2

    It's irrelevant. Legal fees are simply the entry fee to the arena. That's the ticket price. The goal of the game is to hamstring your competition. Apple wins even when it loses, because it takes six to nine months for a challenge to a patent to even make a ripple, meanwhile the courts, being forced through lack of meaningful expertise, pretty much give the complainant the power of the state to shut the border to competition until such time as the patent is invalidated.

    The patent system has turned the courts into pimps who sell the state's trade powers like expensive whores.

    --
    The world's burning. Moped Jesus spotted on I50. Details at 11.
  14. Prior Art from Apple by mkraft · · Score: 3, Informative

    What the linked article doesn't mention, but this one does is that one of the prior art patents that invalidates the "rubber band" patent is owned by the same Apple employee that owns the "rubber band" patent.

  15. It at first you are rejected...try again. by DeadCatX2 · · Score: 5, Interesting

    Chances are that it was rejected the first time. And the second time. And the third time...

    You see, when Apple doesn't get a patent approved, they just change a few words and keep trying. Take for example the '604 patent. It was rejected twice in 2007, three times in 2008, once in 2009, twice in 2010 and once in 2011. (source: http://www.nytimes.com/2012/10/08/technology/patent-wars-among-tech-giants-can-stifle-competition.html?_r=0&pagewanted=all )

    Finally it got approved (tenth time is the charm!).

    --
    :(){ :|:& };:
    1. Re:It at first you are rejected...try again. by DragonWriter · · Score: 2

      Chances are that it was rejected the first time.

      Well, actually, it was largely approved the first time, in an earlier patent that Apple filed (which was only granted after this one was filed), that's one of the reasons many of the claims in this patent are being rejected.

  16. Re:About time.... by gutnor · · Score: 3, Interesting

    Yes and No. Selectively discarding a single one in one side of such important case is only confirming to Companies fill thousands of shitty patent every years, that it is a valid strategy, because they get invalidated only in the most extreme condition, and not even consistently.

    Something good would have been for the USPTO to re-evaluate the whole patent portfolio of both Samsung and Apple and invalidate all the obvious one, regardless if they were cited in a lawsuit or not. THAT would have scared patent trolls and other silly patent hoarder (i.e. all the big companies).

  17. Re:real smart strategy there by admdrew · · Score: 2

    Ahhh, you must have posted Apple's 10-K from the future, showing the effect of all the items slashmydots mentioned.

    --
    LegendMUD