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Apple: Dumb As a Patent Trolling Fox On iPhone Prior Art?
theodp (442580) writes "GeekWire reports that a Microsoft researcher's 1991 video could torpedo Apple's key 'slide to unlock' patent, one of 5 patents that the iPhone maker cited in its demand for $40 per Samsung phone. Confronted with what appears to be damning video evidence of prior art that pre-dates its 'invention' by more than a decade, Apple has reportedly argued that the sliding on/off switch demoed by Catherine Plaisant is materially different than the slide to unlock switch that its 7 inventors came up with. Apple's patent has already been deemed invalid in Europe because of similar functionality present in the Swedish Neonode N1M."
The toggle widgets demoed in the video (attached below) support sliding across the toggle to make it more difficult to swap state (preventing accidental toggling). The video itself is worth a watch — it's interesting to see modern UIs adopting some of the idioms that testing in the early 90s showed were awful (e.g. Gtk+ 3's state toggles).
The iOS slide to unlock is not a physical counterpart for anything, it's a gesture.
Did you watch the video. She literally says...
The motion fits well with the finger gesture. [...] I think to use a sliding gesture makes the toggle slightly more difficult to use but greatly reduces the chances of error [...]"
And those on-off sliders work **exactly** like Apple's slide to unlock, especially as it was originally implemented ... I'm thinking back to my iphone 3GS here.
1. A method of unlocking a hand-held electronic device, the device including a touch-sensitive display, the method comprising:
detecting a contact with the touch-sensitive display at a first predefined location corresponding to an unlock image;
continuously moving the unlock image on the touch-sensitive display in accordance with movement of the contact while continuous contact with the touch screen is maintained, wherein the unlock image is a graphical, interactive user-interface object with which a user interacts in order to unlock the device; and
unlocking the hand-held electronic device if the moving the unlock image on the touch-sensitive display results in movement of the unlock image from the first predefined location to a predefined unlock region on the touch-sensitive display.
To show a patent claim is not new, you have to show that a single piece of prior art shows everything in the patent claim. This piece of prior art wouldn't do that, since it doesn't show a hand-held electronic device, doesn't really show "continuous" movement as opposed to switching between several icons, and it doesn't show unlocking a device. But that's just one of the requirements for validity - 35 USC 102. Incidentally, this type of prior art is called "anticipatory prior art," because it anticipates everything in the patent. It's what laymen usually mean when they say "there's prior art for X patent!" That statement doesn't mean anything, because there's always prior art for something - Neanderthal Ug's wheel is prior art for all-terrain run-flat tires. Just not anticipatory prior art.
Another requirement is non-obviousness - 35 USC 103. Under this requirement, you can show that a patent claim is obvious by showing that a combination of prior art references together teach each and every element in the claim and that they could be reasonably combined. So, if the Claim is A+B+C+D and one reference shows A+B and another shows C+D and they could be combined, that shows that the Claim is obvious.
So, for example, if you can find other references that show a hand-held device, continuous movement of an image, and unlocking a device, those combined with this may be enough to show that the Claim is obvious. That should be pretty easy to find.
One caveat there is that if a reference teaches away from the combination, it may not be available to use in the rejection. So, if the C+D reference says "never combine me with A+B, because bad things happen", then it may not be obvious to combine it with A+B (there may also be an unrecognized E element that makes it work with C+D). Here, the usability study at the end of the video seems to argue away from using sliders as touch-screen switches. But that may not be a strong enough disparagement of their use, nor does it necessarily argue away from its combination with an unlocking system.
Disclaimer: I am a patent attorney, but I am not your patent attorney. The above is not legal advice and is merely for (my own) amusement purposes. I have not spent any serious time looking into this patent, the specification, or any of the dependent Claims.
... which i'd suggest counts as both obvious *and* prior art.
Respectfully, and without necessarily disagreeing with your fundamental point, those terms don't mean what you think they do, legally.
"Prior art" is "anything in the relevant art, that's prior." The Wright Brother's plane is prior art for the Space Shuttle. The Model T is prior art for the Tesla Model S. That doesn't mean they're anticipatory prior art, which is art that teaches everything in a patent claim. So, for example, even though the Model T is prior art for the Model S, it wouldn't invalidate a patent on the battery pack, for example. Similarly, sliding deadbolts are prior art for the virtual slide-to-unlock, but they alone don't show everything in the patent.
"Obvious" is a legal conclusion, like "guilty". It's different than just the "duh" gut feeling that we typically mean when we call something obvious. And just as you show someone is guilty by showing that they committed each and every element of a crime, you show that something is obvious by showing that one or more pieces of prior art exist that, alone or in combination, teach each and every element of the patent claim. So, again, sliding deadbolts show unlocking something... but they alone don't show all the other bits of the claim, like a handheld electronic device. That means you'd have to at least combine "deadbolts" plus "mid-90s Palm smartphone" to show that element.
Using the right terms - anticipatory prior art when you mean that, or obvious when you have a combination of prior art references to invalidate a claim - will increase your credibility with people who are in power to make changes to the patent system.
If the cosmetics are the only aspect being patented, then shouldn't the Star-Trek and pretty much every other purely cosmetic SF tablet that was visually portrayed count as prior art? Rounded rectangles aren't exactly anything new.
In a design patent, cosmetics are the only part that can be patented - it literally cannot claim anything functional.
And a design patent claims everything shown in the drawings... The test for whether it's obvious or not is whether one of ordinary skill in the art of design would consider the design to give the same visual impression as the prior art references. Like, if I showed you the iPad-looking pictures in that patent, and then I drew a rounded rectangle, you couldn't tell them apart. It's actually very similar to trade dress.
But the Star Trek PADD and the 2001 portable television both give different visual impressions. The PADD has a big metal flat front with a few different touch screen portions of different shapes and sizes. The Kubrik pad is tall and narrow and has an angled portion with a bunch of channel buttons. While they're all tablet devices, no one would actually confuse two of them.
It's a UTILITY PATENT, not a design patent. The look of the element on the screen is irrelevant, it is the function of the element that matters. And that is clearly predated by the Microsoft video. And whilst I am not a patent attorney, I do hold 25 utility - and 30 design - patents, I've been through it enough to understand the difference and what is relevant in each case. Design patent = look; utility patent = function.
Browsing at +1 - no ACs, I ignore their posts. So refreshing!