I specifically mentioned getting a new patent for adding the (D)not an Apple iPhone. So if the Apple iPhone meets (A)+(B)+(C) but it does not meet my new condition (D), then my patent stands and the Apple iPhone does not count as prior art for my new patent. And since my condition (D) in necessary it would stand that I would not be infringing on Apple's patent either. That is what I mean about ridiculous.
Yes, and I specifically explained why you're wrong and you would not get the patent and how the thing you call ridiculous doesn't actually occur. Let me try again:
There are two separate and independent requirements for a patent* - (i) that the patent claim be new; and (ii) that the patent claim not be obvious. Again, these are separate and independent: you must meet both in order to get a patent. Okay? It's a Boolean AND.
(i) Something is "new" if it hasn't been done before. If you claim A+B+C+D and only A+B+C has been done before, then A+B+C+D is new. Congratulations, you meet the first test.
(ii) Something is "obvious" if a combination of prior art references teach everything in the patent claim. You claim A+B+C+D and you admit that A+B+C is in the prior art. D is also in the prior art. Therefore, (A+B+C) plus (D) teaches everything in the patent claim. Therefore, it's obvious, and you fail the second test.
If the requirement for a patent is passing (i) AND (ii), and you passed (i) but failed (ii), do you get a patent? No.
Does that help to clarify why you're wrong?
*There are really about 6, but you're confused enough.
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.
with
A method of (changing state of) an () 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 a (state) image;
continuously moving the (state) image on the touch-sensitive display in accordance with movement of the contact while continuous contact with the touch screen is maintained, wherein the (state) image is a graphical, interactive user-interface object with which a user interacts in order to (change state of) the device; and
(changing the state of) the () electronic device if the moving the (state) image on the touch-sensitive display results in movement of the (state) image from the first predefined location to a predefined unlock region on the touch-sensitive display.
The latter accurately describes what happens in the Microsoft video demonstration. All I did was to substitute (state) for "unlock", (change state of) for "unlocking". I also removed "handheld".
Sure, but you still need to find those elements in the prior art if you want to prove the original claim invalid, rather than your modified claim. Legally, you can't rewrite the claim to remove elements while trying to invalidate it.
But this is worse, from a legal standpoint:
So what we have is that Apple is using the general application of switches with graphical representation to perform a specific function (unlock) rather than the general (changing state) and Apple applying it to handheld devices.
You can't distill a claim down to a "gist" to invalidate it either. By definition, when you paraphrase a claim, you are substituting elements in the claim with known elements. That's how paraphrasing works: if I have a new concept that I want to communicate with you in a simple way, like an automobile, I will re-phrase it in terms that are well-known to you so that you can understand - i.e. "horseless carriage". But that doesn't mean that "horseless carriage" describes everything in an automobile. I'm distilling it down to an easier-to-understand combination of known elements, explicitly removing anything that you wouldn't already know. The resulting "gist" is of course unpatentable, but it also doesn't include any of the new parts. It says nothing about patentability of the new stuff.
Everyone can recognize unlocking as a specific example of a state change... same goes for handheld.
Then it should be easy to find an example of a handheld device in the prior art before 2004, and an example of unlocking something, right? Of course it is. The point is that you still have to find those. Legally, to invalidate the patent, you can't simply say "the video teaches most of it except for these parts, but [handwave, handwave] they're obvious" - instead, you have to say "the video teaches most of it, except for 'handheld' and 'unlocking'. Nokia had a handheld phone in 1996. It had a lock screen and you would unlock it. Therefore, the combination of the Nokia phone and the video teach all of the elements in the
That's the point - the legalese is engineering. Invaliding a patent claim is a function that requires a set of inputs, one input per claim element. The claim itself is Boolean logic, with a big ol' AND between every element. If you fail to put in an input, if you fail to find a piece of prior art showing that element, then you haven't invalidated the claim: A+B+C+__ is not the same as A+B+C+D.
I think the mental gymnastics that lawyers have to go through to defend their positions is a part of the problem with these bad patents. If you say A+B+C is not the same as A+B+C+D, then I could patent the (A)slide to unlock gesture on a (B)handheld (C)touchscreen device that is (D)not an Apple iPhone and I should be able to have a new and clearly non-obvious patent. All I have to say is this stuff is ridiculous.
No, it's that if you claim "(A)slide to unlock gesture on a (B)handheld (C)touchscreen device that is (D)not an Apple iPhone," then by definition, the Apple iPhone alone does not teach everything in that claim. So instead, I have to find another piece of prior art. Like a Samsung phone, which is (D)not an Apple iPhone. The combination of an iPhone, which teaches A+B+C, and a Samsung phone, which teaches D, together teach A+B+C+D so therefore your patent claim is obvious.
See, it's actually very straightforward. You simply have to find one or more pieces of prior art that together teach every element in the claim. Adding "not X" is going to be easy to find, since there's tons of "not X" out there.
The only real mental gymnastics involved are forcing yourself not to skip steps and say "this piece of prior art teaches A, and I leave B+C+D as an exercise for the reader".
I'd flavor your comment with this:
The term "obvious" in the patent world has been significantly watered down in recent times. Consider for example that adding an eraser to the back of a pencil was considered "obvious" and therefore, not patentable in its time.
That's the same test as now, though - pencils are known, erasers are known, it's trivial to combine the two, therefore it's obvious.
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>
It does show continuous movement. She discusses sliding from one side to another, and that it makes it harder to accidentally switch the toggle.
Continuous movement of her finger - the image appears to have three positions (left, center, right). Mind you, while that's a distinction between this video and the claim, I don't believe that that makes this patentable - I'm sure we can find a "continuously" moving image before 2004 in the art. But that requires a second piece of prior art to be combined with this, which was my point. It's a process thing.
The only thing really missing is "unlocking the hand-held electronic device" But the demoer keeps talking about a general concept of "toggling" Surely it is obvious that if you can toggle, then you can toggle anything, including toggling from a locked to an unlocked state.
That's the thing - you can't just say "surely it's obvious" any more than you can say "surely, he's guilty". You need evidence. In this case, you'd need another piece of prior art from pre-2004 that shows "unlocking a hand-held electronic device." That's not hard, but it is an important step. You can't skip steps.
"So why should it matter whether it was on a handheld device? Because "handheld device" is in the claim. It's an element. That means you can't just ignore it, even if you think it's trivial, just like you can't ignore the inputs to a function. Go find that trivial element in the prior art. If it's truly trivial, then finding it should be easy, right?"
How does that defeat the non-obvious clause?
It doesn't. Go back and re-read what I wrote: "It's an element. That means you can't just ignore it, even if you think it's trivial, just like you can't ignore the inputs to a function. Go find that trivial element in the prior art. If it's truly trivial, then finding it should be easy, right?"
Can you find a "handheld device" in the art prior to 2004? I can. Therefore, the fact that the element is in there doesn't make the claim non-obvious. This is more of a process issue - you can't skip elements in a claim, just because you're lazy.
It is both trivial (to implement) and obvious (anything you can put on a large computer you can put on a small computer).
Difficulty of implementation isn't a requirement anywhere in the patent act. And see above regarding large vs. small.
Why do you keep claiming that Apple has somehow managed to do animation without discrete steps?
Actually, as I repeatedly said, it depends on the interpretation of the claim term "continuous". Is 3 steps continuous? 12? 50? As many pixels are there are between the two end points? I don't view left, middle, right as continuous, personally, but the definition really depends on how it's defined in the specification.
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.
It is, of course, easiest to invalidate a patent if each of claim has prior art for each of its components. But that is not necessary. For example, just because nobody has published prior art specifically for a wheel painted in red polka dots doesn't mean that a patent on such a thing would be valid. The red polka dots have nothing to do with the actual technical contribution of the patent.
No, but it would mean that it was "new". Instead, the patent would be "obvious", because red polka dots are known, wheels are known, and the combination is trivial to combine.
Sliding buttons have been well-known UI elements for decades, as the Microsoft video shows. There shouldn't be anything patentable about using a UI element in the way it was intended to be used.
Except that there are slight differences between what's shown in the Microsoft video and the patent claim. It's like the red polka dots - the video shows the wheel, but it doesn't show the dots. So you have to find a second reference that shows red polka dots and show that you could easily combine that with the wheel to make the claimed invention. You can't simply ignore elements in the claim however.
You misunderstand, I'm not saying the patent is invalid by the current rules of the patent system, I'm sure you are correct on that. I'm saying the differences are so trivial that only an idiot would look at the Microsoft one, then at the Apple one and conclude that the Apple one is innovative and with that in mind the US patent system's bar for innovation is unbelievably low.
Well, the current system (which is actually the same in every country that's a member of the Paris Convention, which includes 175 countries currently) was built to avoid hindsight, because everything can be considered obvious in hindsight. It's essentially a due process requirement - just as we make the state show that a defendant committed every element of a crime before we throw them in jail as guilty, we make the patent office show that every element of a patent claim existed in the prior art before we throw it out as not new or obvious. Now, sure, maybe only an idiot looks at OJ Simpson and thinks he's innocent, but there are really good reasons for keeping the system in place that allowed him to be acquitted.
OK, what is that patent said 'on a white background', and the prior art has a black background. or the prior art happened to be on a 4:3 ratio monitor, while the patent specified 16:9 ratio screen?
Does that make an actual, practical difference to the implementation?
Well, can we assume for the sake of your question that "white backgrounds" and "16:9 ratio screens" don't exist in the prior art? Otherwise, then you simply select the different prior art that does show that.
Assuming that those didn't exist in the prior art, then you have to ask why, in thousands of years of recorded history and invention, no one came up with a white background before or a 16:9 ratio screen. Maybe it's just an aesthetic design choice, and therefore isn't patentable... or maybe it has some functional purpose and no one ever thought of it until the patent applicant came up with it.
Legally, if nothing in the prior art teaches or suggests an element of a patent claim, then the burden of proof shifts to the patent examiner to show why it was still nonetheless obvious. For example, say the prior art showed computers, but didn't show a computer in yellow and green plaid. You could still say that that doesn't have any effect on the computer, is just an aesthetic decision, and therefore doesn't aid patentability.
But that can be rebutted if, for example, every other manufacturer suddenly starts making yellow and green plaid computers and enjoying great commercial success as a result. If there was an untapped market for a commercially valuable feature, then that implies that that feature wasn't obvious: otherwise, some entrepreneur would have already done it because, hey, free money.
If the patent was 'shake to unlock', 'twist in midair 3 times to unlock' or something you couldn't do on an older fixed mount touchscreen, the fact it's on a handheld would be relevant; in this case, it is not.
True, but that doesn't mean you can completely ignore the element. Particularly here, when it's trivial to find examples of handheld devices before 2004. There's no reason to hand wave and say "we don't need to prove every element in the patent claim existed, we can ignore this one about hand held devices" - here is a "handheld electronic device" prior art reference, and even in the right industry. Now we just have to do that for every element the video missed.
The patent system is intended to help engineers and inventors. It is their understanding of "obvious" and "prior art" that is relevant, not the understanding of (imitation) lawyers with a stick up their ass, like you.
Well, I'm sure that refusing to understand the language you're arguing about will be really convincing when you're trying to convince legislators to enact patent reforms. Using your own definitions for words can't possibly cause them to ignore you. Good luck with that.
Whatever, dude. You're biased as hell and I don't care.
"Biased" does not mean the same thing as "knowledgeable". Simply because I know the law doesn't mean that I'm biased.
If I found the interview, you'd say he was just a bad egg who should be fired and that it wasn't systematic.
If you found the interview, I'd eat my hat. If Google can't find it, then I'm not going to reach for my fork and knife just yet.
However, if the interview doesn't actually exist, would you ever admit that? Somehow, I think not. You'd probably try to dredge up some argument about proving a logical negative and that if we can't search the entirety of human knowledge, then we can't actually prove that an alleged examiner didn't actually say those words and that you didn't actually read them once before all copies of the interview were irrevocably destroyed.
That's about as credible as calling me biased.
I'm not American and I have no desire to start a business and be your servants, so I can just casually infringe on all this shit as though it didn't exist while your country implodes on an overdose of poorly thought out ideology.
But you're not biased, right?
Back in the day, it was necessary to entice people to reveal their guild secrets because forcing them wasn't practical and running them out of business wasn't either. Now, both options are practical, and that's what I support.
You support running people out of business if they don't reveal their secrets? o.O
I've often thought of building a shopping cart with a 3D scanner in it and going down to the shops to wander around indecisively putting things into and out of my shopping cart, before buying a stick of gum and going home to upload them all to thingiverse. Even things I have no interest in personally possessing. Just to put the screws to people who enforce these artificial scarcity measures. Perhaps the act of typing this out will be the trigger that causes some 16 year old geek to do it tomorrow. If not, I'll probably get to it eventually,
I really do want you guys to suffer, though. I try not to think that way, but some part of me would be upset if you change before you pushed the rest of the world to the point of taking violent steps against you. I know that on a systematic level justice is wrong, and that I should try to have compassion for you even though you're evil fucks... but it IS emotionally gratifying, and I'm not as nice a guy as I try to be.
Uh, okay, dude. Just remember, I'm the biased one here, right?
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.
If you actually watch the video it does show continuous movement of a slider (2:55-2:59)...
Honestly if you watch the video from 2:55 to 2:59 then look at a video of unlocking an iPhone3G are you actually going to tell me you think the iPhone version is innovation?
As mentioned in a different reply, I see non-continuous movement: slider at the left side; slider in the middle; slider at the right side. Three images, replaced in succession, as I said.
Additionally, as I said, that simply means that this reference alone does not show everything in the patent claim. However, I'm sure you can find another piece of prior art that shows continuous movement of an image. If so, you can then combine those two pieces of prior art to help show the claim is invalid.
You actually need to do that for every element in the claim, though - if there's anything the video doesn't show, such as continuous movement, handheld devices, and unlocking, then you need to find other pieces of prior art that do show those features. Then you combine them all and say "the patent is obvious over the video, in further view of references A, B, and C."
... and while it doesn't show "unlocking a device" that is just the succeeding action
That doesn't mean you can just ignore it or rewrite the claim to remove elements. You still have to find those references if you want to show the patent is invalid. But honestly, if you can't find "unlocking a device" in the prior art before 2004, then you probably aren't doing the best searches in the world.
... and I doubt that Android's version of "unlock" is the same as iOS's so that part would be different anyway between iOS and Android, all they would have to do is called it something other than "unlock".
The patent claim doesn't say "unlocking a device as in iOS". Again, just like you were trying to remove elements from the claim, now you're adding them. You can't do that - just go by the actual words in the claim. If it only says "unlocking a device", then you can find unlocking any device. Like a Nokia phone, for example, or a Palm phone.
The only other element is "a hand-held electronic device" and if in the US that qualifies as "innovative" then there are a shitload of things that you can do on desktops that I would like to patent!
You tell me - can you find "a hand-held electronic device" in the prior art before 2004? I bet you can. I have faith in you. And if you can find it, then no, "a hand-held electronic device" doesn't qualify as innovative in 2004.
Now do that for every element in the patent claim. Not a rewritten version of the claim, not half the claim and just hand wave at the other half, but every element. If you can do that, then you can prove the claim is invalid.
I've read interviews where patent clerks said precisely that. I'm not motivated enough to look for them, but it IS true.
No, it's not. And in fact, that post is the first hit on Google for that combination of words, making any such claim of a previous published interview suspect.
After reading the specification and claims, the examiner searches the prior art.
No mention of "don't bother, because you can just assume that the company did the search." Sorry, you're simply incorrect, and your alleged interviews do not exist.
Microsoft's video doesn't really show a slider. It shows touch buttons that look visually like sliders. But you can trip them just by touching in the active area for the desired state. This is shown in the video where the demonstrator runs their finger down a column of switches and they all switch. Apple requires an explicit "click and drag" operation to unlock.
Check out 4:12 in the video, showing a drag gesture on the lever icons. She also explains at 4:35-4:50 how, unlike a click at either active end, a drag gesture reduces the possibility of accidental triggering.
If Apple gets their way and (1) gets Samsung's FRAND patents effectively deemed worthless (already happened when Obama vetoed the ITC judgment against Apple),
Just to correct a misunderstanding, the veto of the ITC decision was absolutely correct, and did not do anything to the value of Samsung's FRAND patents:
1) The ITC does not have the power to award monetary damages for infringement. They only have the power to issue an injunction against imports;
2) Samsung agreed, when they put their patents into FRAND status, that they would never seek an injunction against an infringer: instead, they would only be allowed to seek monetary damages. This is the same for every FRAND patent - no one has ever gotten an injunction over infringement of a FRAND patent;
3) when the ITC issued the import injunction for violation of the FRAND patent, Samsung was in breach of its FRAND agreements.
There are two results at that point - either the ITC import ban is vetoed, or the DoJ has to pursue Samsung for anti-trust violations. The former is vastly preferable for everyone.
And it did not affect the value of the patents, as their value was never based on injunctive relief, and the veto of the ITC decision in no way prevents Samsung from getting a judgement for damages in a regular court.
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.
When a sliding lock is used on a computer, all of a sudden it's a brilliant idea?
I'm not sure why you thought I was saying that. Do you think that we don't have computers in real life? What do you think I'm typing on right now.
Tell you what - go back and actually quote some part of my post, using that handy "quote parent" button or even copying and pasting old-school style, and then tell me where you think I said that adding "on a computer" to a patent claim makes it patentable. I'll wait.
Also, online, you could be anyone. Respectfully.
Yes, but I'm quoting the actual patent and citing to actual statutes, rather than trying to put words in someone's mouth that they never said. That tends to give me a bit of credibility that I may know what I'm talking about, rather than destroying any that one may have had.
But isn't that just more of the "this function, that fumigation ON THE INTERNET" sort of thing?
Yeah, that sort of thing doesn't actually exist. Let's say you had a patent that claimed "this function, that fumigation" (we'll call that A), "ON THE INTERNET" (which we'll call B), then it claims A+B, right? Well, if you can find a reference that shows A, and you can find, say, the Internet, for B, then you can show the patent is invalid over those two references. And that should be pretty easy, yeah?
Thing is, there aren't actually any patents that have claims that say "[known function] ON THE INTERNET!" because that would be invalid as shown above. Now, people will describe the patent that way, or paraphrase it in such a manner, but that's not the actual claim, and invariably, the claim always turns out to be A+B+C+D+"on the internet" and some one or more of A-D aren't known.
Basically, "on the internet" is never the patentable key to a patent claim, even if it's in there. There's always some other bit that makes it different from what's known.
Like here, the fact that the patent claims a handheld electronic device doesn't mean that that's the patentable hook - it's just that it's one element. It's like if you claim a time machine that includes batteries, you're not saying that batteries are also new, just your flux capacitor, which happens to run on batteries.
" since it doesn't show a hand-held electronic device,"
that's just a narrowing down, it's still just a type of touch screen.
Yes, but the patent claims something specific. If that specific thing is not shown in the prior art reference, then you need to find another reference that shows that element. This shouldn't be too hard: I'm sure you can find a hand-held device in the field of computers before 2004.
The point is that you can't simply ignore an element in the claim because you're lazy, just like you can't convict someone of murder without anyone being dead because they totally look like a murderer. You have to actually find prior art elements for each and every element in the claim. If it's truly obvious, then that should be easy.
I'm going to break my usual rule and apply to an AC, simply because this is a good enough question to address. But generally, I will not reply to people who refuse to participate in a back-and-forth dialogue.
That's a huge part of the problem - the legalese obfuscates the engineering. An engineer would point out that the swipe changes state. That was already shown in the "prior art." Why should it matter whether it was on a handheld device?
That's the point - the legalese is engineering. Invaliding a patent claim is a function that requires a set of inputs, one input per claim element. The claim itself is Boolean logic, with a big ol' AND between every element. If you fail to put in an input, if you fail to find a piece of prior art showing that element, then you haven't invalidated the claim: A+B+C+__ is not the same as A+B+C+D.
So why should it matter whether it was on a handheld device? Because "handheld device" is in the claim. It's an element. That means you can't just ignore it, even if you think it's trivial, just like you can't ignore the inputs to a function. Go find that trivial element in the prior art. If it's truly trivial, then finding it should be easy, right?
And yes, "handheld device" is easy to find in the prior art. Now go do that for every element in the claim. If they're all as trivial as "handheld device", then it should be easy to invalidate the patent. The problem comes when you search and search for some element and can't find it anywhere, even if you believe in your gut that it should be easy.
doesn't really show "continuous" movement as opposed to switching between several icons, and it doesn't show unlocking a device.
Actually the slider demoed at 2:58 in the video shows a static background image On ------- Off, with the 'slider' box moving continuously back and forth along with the gesture motion.
Maybe it's me, but I saw that as discrete jumps:
On -[]------ Off
On ---[]---- Off
On -----[]-- Off
On -------[] Off
But that starts getting into the question of "what does continuous mean" since everything is quantized. My point there was simply to note that the claims require "continuous", and that reference may not show visually continuous movement. But other references surely would, no?
The offensive thing here is that arrival of a portable touchscreen makes a lot of things about it obvious. We already had done the prior research on touch screen controls -- right up to and including the finding that the slide gesture in particular was just awkward enough that it was good for preventing accidental activation of the touch screen control.
Then a decade or so later, we have portal touchscreen device and they are looking for a touch screen control to access it that would be suitable -- the key characteristic being that it prevents accidental activation.
The arrival of a portable touchscreen alone doesn't make anything obvious, except a patent claim that just says "portable touchscreen". That's what I meant by those elements A+B+C+D. The touchscreen is just one element, A. If a patent only claims "A", then yes, it's obvious over that touchscreen. But if there are other elements, you have to then find those in the prior art, too.
Now, yes, touchscreen interfaces had been investigated, and those investigations resulted in other elements B, B', C, E, F, G+H, etc... But you can't ignore the steps when you're trying to prove a legal conclusion - you have to put all of those elements together and match what's in the claim.
It doesn't take a super genius to connect those dots. Slide-to-unlock was GOING to happen.
Well, that's the question - were all of the dots in the prior art that needed to be connected, or was there a missing dot? If there was a missing dot, by definition, it's not obvious.
During case about a year ago, there was a ton of Prior art given to the jury, But they decided to ignore it all cause as quoted "it would of taken to long".
Respectfully, I believe you're misquoting the jury there. They said that at the beginning of their deliberations they got bogged down on the bounce-back and pinch-to-zoom patents. To speed things up, they skipped past that patent and dealt with some of the other easier ones before returning. It's like if you've got 10 tasks and one is really difficult, it's frequently more efficient to get the 9 easy ones done first. It's certainly less depressing.
Apple being able to use home town jury that clearly will never rule against the home town company is a joke, then now Apple does have Obama on the take protecting from sales ban which should be in place on some apple products for stealing Samsung patents and refusing to pay for them.
Slashdot Mirror
I specifically mentioned getting a new patent for adding the (D)not an Apple iPhone. So if the Apple iPhone meets (A)+(B)+(C) but it does not meet my new condition (D), then my patent stands and the Apple iPhone does not count as prior art for my new patent. And since my condition (D) in necessary it would stand that I would not be infringing on Apple's patent either. That is what I mean about ridiculous.
Yes, and I specifically explained why you're wrong and you would not get the patent and how the thing you call ridiculous doesn't actually occur. Let me try again:
There are two separate and independent requirements for a patent* - (i) that the patent claim be new; and (ii) that the patent claim not be obvious. Again, these are separate and independent: you must meet both in order to get a patent. Okay? It's a Boolean AND.
(i) Something is "new" if it hasn't been done before. If you claim A+B+C+D and only A+B+C has been done before, then A+B+C+D is new. Congratulations, you meet the first test.
(ii) Something is "obvious" if a combination of prior art references teach everything in the patent claim. You claim A+B+C+D and you admit that A+B+C is in the prior art. D is also in the prior art. Therefore, (A+B+C) plus (D) teaches everything in the patent claim. Therefore, it's obvious, and you fail the second test.
If the requirement for a patent is passing (i) AND (ii), and you passed (i) but failed (ii), do you get a patent?
No.
Does that help to clarify why you're wrong?
*There are really about 6, but you're confused enough.
Compare (original)
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.
with
A method of (changing state of) an () 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 a (state) image; continuously moving the (state) image on the touch-sensitive display in accordance with movement of the contact while continuous contact with the touch screen is maintained, wherein the (state) image is a graphical, interactive user-interface object with which a user interacts in order to (change state of) the device; and (changing the state of) the () electronic device if the moving the (state) image on the touch-sensitive display results in movement of the (state) image from the first predefined location to a predefined unlock region on the touch-sensitive display.
The latter accurately describes what happens in the Microsoft video demonstration. All I did was to substitute (state) for "unlock", (change state of) for "unlocking". I also removed "handheld".
Sure, but you still need to find those elements in the prior art if you want to prove the original claim invalid, rather than your modified claim. Legally, you can't rewrite the claim to remove elements while trying to invalidate it.
But this is worse, from a legal standpoint:
So what we have is that Apple is using the general application of switches with graphical representation to perform a specific function (unlock) rather than the general (changing state) and Apple applying it to handheld devices.
You can't distill a claim down to a "gist" to invalidate it either. By definition, when you paraphrase a claim, you are substituting elements in the claim with known elements. That's how paraphrasing works: if I have a new concept that I want to communicate with you in a simple way, like an automobile, I will re-phrase it in terms that are well-known to you so that you can understand - i.e. "horseless carriage". But that doesn't mean that "horseless carriage" describes everything in an automobile. I'm distilling it down to an easier-to-understand combination of known elements, explicitly removing anything that you wouldn't already know. The resulting "gist" is of course unpatentable, but it also doesn't include any of the new parts. It says nothing about patentability of the new stuff.
Everyone can recognize unlocking as a specific example of a state change... same goes for handheld.
Then it should be easy to find an example of a handheld device in the prior art before 2004, and an example of unlocking something, right? Of course it is. The point is that you still have to find those. Legally, to invalidate the patent, you can't simply say "the video teaches most of it except for these parts, but [handwave, handwave] they're obvious" - instead, you have to say "the video teaches most of it, except for 'handheld' and 'unlocking'. Nokia had a handheld phone in 1996. It had a lock screen and you would unlock it. Therefore, the combination of the Nokia phone and the video teach all of the elements in the
That's the point - the legalese is engineering. Invaliding a patent claim is a function that requires a set of inputs, one input per claim element. The claim itself is Boolean logic, with a big ol' AND between every element. If you fail to put in an input, if you fail to find a piece of prior art showing that element, then you haven't invalidated the claim: A+B+C+__ is not the same as A+B+C+D.
I think the mental gymnastics that lawyers have to go through to defend their positions is a part of the problem with these bad patents. If you say A+B+C is not the same as A+B+C+D, then I could patent the (A)slide to unlock gesture on a (B)handheld (C)touchscreen device that is (D)not an Apple iPhone and I should be able to have a new and clearly non-obvious patent. All I have to say is this stuff is ridiculous.
No, it's that if you claim "(A)slide to unlock gesture on a (B)handheld (C)touchscreen device that is (D)not an Apple iPhone," then by definition, the Apple iPhone alone does not teach everything in that claim. So instead, I have to find another piece of prior art. Like a Samsung phone, which is (D)not an Apple iPhone. The combination of an iPhone, which teaches A+B+C, and a Samsung phone, which teaches D, together teach A+B+C+D so therefore your patent claim is obvious.
See, it's actually very straightforward. You simply have to find one or more pieces of prior art that together teach every element in the claim. Adding "not X" is going to be easy to find, since there's tons of "not X" out there.
The only real mental gymnastics involved are forcing yourself not to skip steps and say "this piece of prior art teaches A, and I leave B+C+D as an exercise for the reader".
I'd flavor your comment with this: The term "obvious" in the patent world has been significantly watered down in recent times. Consider for example that adding an eraser to the back of a pencil was considered "obvious" and therefore, not patentable in its time.
That's the same test as now, though - pencils are known, erasers are known, it's trivial to combine the two, therefore it's obvious.
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>
It does show continuous movement. She discusses sliding from one side to another, and that it makes it harder to accidentally switch the toggle.
Continuous movement of her finger - the image appears to have three positions (left, center, right). Mind you, while that's a distinction between this video and the claim, I don't believe that that makes this patentable - I'm sure we can find a "continuously" moving image before 2004 in the art. But that requires a second piece of prior art to be combined with this, which was my point. It's a process thing.
The only thing really missing is "unlocking the hand-held electronic device" But the demoer keeps talking about a general concept of "toggling" Surely it is obvious that if you can toggle, then you can toggle anything, including toggling from a locked to an unlocked state.
That's the thing - you can't just say "surely it's obvious" any more than you can say "surely, he's guilty". You need evidence. In this case, you'd need another piece of prior art from pre-2004 that shows "unlocking a hand-held electronic device." That's not hard, but it is an important step. You can't skip steps.
"So why should it matter whether it was on a handheld device? Because "handheld device" is in the claim. It's an element. That means you can't just ignore it, even if you think it's trivial, just like you can't ignore the inputs to a function. Go find that trivial element in the prior art. If it's truly trivial, then finding it should be easy, right?"
How does that defeat the non-obvious clause?
It doesn't. Go back and re-read what I wrote: "It's an element. That means you can't just ignore it, even if you think it's trivial, just like you can't ignore the inputs to a function. Go find that trivial element in the prior art. If it's truly trivial, then finding it should be easy, right?"
Can you find a "handheld device" in the art prior to 2004? I can. Therefore, the fact that the element is in there doesn't make the claim non-obvious. This is more of a process issue - you can't skip elements in a claim, just because you're lazy.
It is both trivial (to implement) and obvious (anything you can put on a large computer you can put on a small computer).
Difficulty of implementation isn't a requirement anywhere in the patent act. And see above regarding large vs. small.
Note: there is no point in arguing with me on this - go argue with wikipedia.
I believe there's no point in arguing with you on it, because we're in agreement. Did you mean to reply to someone else?
Why do you keep claiming that Apple has somehow managed to do animation without discrete steps?
Actually, as I repeatedly said, it depends on the interpretation of the claim term "continuous". Is 3 steps continuous? 12? 50? As many pixels are there are between the two end points? I don't view left, middle, right as continuous, personally, but the definition really depends on how it's defined in the specification.
It is, of course, easiest to invalidate a patent if each of claim has prior art for each of its components. But that is not necessary. For example, just because nobody has published prior art specifically for a wheel painted in red polka dots doesn't mean that a patent on such a thing would be valid. The red polka dots have nothing to do with the actual technical contribution of the patent.
No, but it would mean that it was "new". Instead, the patent would be "obvious", because red polka dots are known, wheels are known, and the combination is trivial to combine.
Sliding buttons have been well-known UI elements for decades, as the Microsoft video shows. There shouldn't be anything patentable about using a UI element in the way it was intended to be used.
Except that there are slight differences between what's shown in the Microsoft video and the patent claim. It's like the red polka dots - the video shows the wheel, but it doesn't show the dots. So you have to find a second reference that shows red polka dots and show that you could easily combine that with the wheel to make the claimed invention. You can't simply ignore elements in the claim however.
You misunderstand, I'm not saying the patent is invalid by the current rules of the patent system, I'm sure you are correct on that. I'm saying the differences are so trivial that only an idiot would look at the Microsoft one, then at the Apple one and conclude that the Apple one is innovative and with that in mind the US patent system's bar for innovation is unbelievably low.
Well, the current system (which is actually the same in every country that's a member of the Paris Convention, which includes 175 countries currently) was built to avoid hindsight, because everything can be considered obvious in hindsight. It's essentially a due process requirement - just as we make the state show that a defendant committed every element of a crime before we throw them in jail as guilty, we make the patent office show that every element of a patent claim existed in the prior art before we throw it out as not new or obvious. Now, sure, maybe only an idiot looks at OJ Simpson and thinks he's innocent, but there are really good reasons for keeping the system in place that allowed him to be acquitted.
OK, what is that patent said 'on a white background', and the prior art has a black background. or the prior art happened to be on a 4:3 ratio monitor, while the patent specified 16:9 ratio screen?
Does that make an actual, practical difference to the implementation?
Well, can we assume for the sake of your question that "white backgrounds" and "16:9 ratio screens" don't exist in the prior art? Otherwise, then you simply select the different prior art that does show that.
Assuming that those didn't exist in the prior art, then you have to ask why, in thousands of years of recorded history and invention, no one came up with a white background before or a 16:9 ratio screen. Maybe it's just an aesthetic design choice, and therefore isn't patentable... or maybe it has some functional purpose and no one ever thought of it until the patent applicant came up with it.
Legally, if nothing in the prior art teaches or suggests an element of a patent claim, then the burden of proof shifts to the patent examiner to show why it was still nonetheless obvious. For example, say the prior art showed computers, but didn't show a computer in yellow and green plaid. You could still say that that doesn't have any effect on the computer, is just an aesthetic decision, and therefore doesn't aid patentability.
But that can be rebutted if, for example, every other manufacturer suddenly starts making yellow and green plaid computers and enjoying great commercial success as a result. If there was an untapped market for a commercially valuable feature, then that implies that that feature wasn't obvious: otherwise, some entrepreneur would have already done it because, hey, free money.
If the patent was 'shake to unlock', 'twist in midair 3 times to unlock' or something you couldn't do on an older fixed mount touchscreen, the fact it's on a handheld would be relevant; in this case, it is not.
True, but that doesn't mean you can completely ignore the element. Particularly here, when it's trivial to find examples of handheld devices before 2004. There's no reason to hand wave and say "we don't need to prove every element in the patent claim existed, we can ignore this one about hand held devices" - here is a "handheld electronic device" prior art reference, and even in the right industry. Now we just have to do that for every element the video missed.
The patent system is intended to help engineers and inventors. It is their understanding of "obvious" and "prior art" that is relevant, not the understanding of (imitation) lawyers with a stick up their ass, like you.
Well, I'm sure that refusing to understand the language you're arguing about will be really convincing when you're trying to convince legislators to enact patent reforms. Using your own definitions for words can't possibly cause them to ignore you. Good luck with that.
Whatever, dude. You're biased as hell and I don't care.
"Biased" does not mean the same thing as "knowledgeable". Simply because I know the law doesn't mean that I'm biased.
If I found the interview, you'd say he was just a bad egg who should be fired and that it wasn't systematic.
If you found the interview, I'd eat my hat. If Google can't find it, then I'm not going to reach for my fork and knife just yet.
However, if the interview doesn't actually exist, would you ever admit that? Somehow, I think not. You'd probably try to dredge up some argument about proving a logical negative and that if we can't search the entirety of human knowledge, then we can't actually prove that an alleged examiner didn't actually say those words and that you didn't actually read them once before all copies of the interview were irrevocably destroyed.
That's about as credible as calling me biased.
I'm not American and I have no desire to start a business and be your servants, so I can just casually infringe on all this shit as though it didn't exist while your country implodes on an overdose of poorly thought out ideology.
But you're not biased, right?
Back in the day, it was necessary to entice people to reveal their guild secrets because forcing them wasn't practical and running them out of business wasn't either. Now, both options are practical, and that's what I support.
You support running people out of business if they don't reveal their secrets? o.O
I've often thought of building a shopping cart with a 3D scanner in it and going down to the shops to wander around indecisively putting things into and out of my shopping cart, before buying a stick of gum and going home to upload them all to thingiverse. Even things I have no interest in personally possessing. Just to put the screws to people who enforce these artificial scarcity measures. Perhaps the act of typing this out will be the trigger that causes some 16 year old geek to do it tomorrow. If not, I'll probably get to it eventually,
I really do want you guys to suffer, though. I try not to think that way, but some part of me would be upset if you change before you pushed the rest of the world to the point of taking violent steps against you. I know that on a systematic level justice is wrong, and that I should try to have compassion for you even though you're evil fucks... but it IS emotionally gratifying, and I'm not as nice a guy as I try to be.
Uh, okay, dude. Just remember, I'm the biased one here, right?
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.
If you actually watch the video it does show continuous movement of a slider (2:55-2:59)...
Honestly if you watch the video from 2:55 to 2:59 then look at a video of unlocking an iPhone3G are you actually going to tell me you think the iPhone version is innovation?
As mentioned in a different reply, I see non-continuous movement: slider at the left side; slider in the middle; slider at the right side. Three images, replaced in succession, as I said.
Additionally, as I said, that simply means that this reference alone does not show everything in the patent claim. However, I'm sure you can find another piece of prior art that shows continuous movement of an image. If so, you can then combine those two pieces of prior art to help show the claim is invalid.
You actually need to do that for every element in the claim, though - if there's anything the video doesn't show, such as continuous movement, handheld devices, and unlocking, then you need to find other pieces of prior art that do show those features. Then you combine them all and say "the patent is obvious over the video, in further view of references A, B, and C."
... and while it doesn't show "unlocking a device" that is just the succeeding action
That doesn't mean you can just ignore it or rewrite the claim to remove elements. You still have to find those references if you want to show the patent is invalid. But honestly, if you can't find "unlocking a device" in the prior art before 2004, then you probably aren't doing the best searches in the world.
... and I doubt that Android's version of "unlock" is the same as iOS's so that part would be different anyway between iOS and Android, all they would have to do is called it something other than "unlock".
The patent claim doesn't say "unlocking a device as in iOS". Again, just like you were trying to remove elements from the claim, now you're adding them. You can't do that - just go by the actual words in the claim. If it only says "unlocking a device", then you can find unlocking any device. Like a Nokia phone, for example, or a Palm phone.
The only other element is "a hand-held electronic device" and if in the US that qualifies as "innovative" then there are a shitload of things that you can do on desktops that I would like to patent!
You tell me - can you find "a hand-held electronic device" in the prior art before 2004? I bet you can. I have faith in you. And if you can find it, then no, "a hand-held electronic device" doesn't qualify as innovative in 2004.
Now do that for every element in the patent claim. Not a rewritten version of the claim, not half the claim and just hand wave at the other half, but every element. If you can do that, then you can prove the claim is invalid.
I've read interviews where patent clerks said precisely that. I'm not motivated enough to look for them, but it IS true.
No, it's not. And in fact, that post is the first hit on Google for that combination of words, making any such claim of a previous published interview suspect.
Furthermore, here's the Manual of Patent Examining Procedure". As noted in section 704.01:
After reading the specification and claims, the examiner searches the prior art.
No mention of "don't bother, because you can just assume that the company did the search." Sorry, you're simply incorrect, and your alleged interviews do not exist.
Microsoft's video doesn't really show a slider. It shows touch buttons that look visually like sliders. But you can trip them just by touching in the active area for the desired state. This is shown in the video where the demonstrator runs their finger down a column of switches and they all switch. Apple requires an explicit "click and drag" operation to unlock.
Check out 4:12 in the video, showing a drag gesture on the lever icons. She also explains at 4:35-4:50 how, unlike a click at either active end, a drag gesture reduces the possibility of accidental triggering.
If Apple gets their way and (1) gets Samsung's FRAND patents effectively deemed worthless (already happened when Obama vetoed the ITC judgment against Apple),
Just to correct a misunderstanding, the veto of the ITC decision was absolutely correct, and did not do anything to the value of Samsung's FRAND patents:
1) The ITC does not have the power to award monetary damages for infringement. They only have the power to issue an injunction against imports;
2) Samsung agreed, when they put their patents into FRAND status, that they would never seek an injunction against an infringer: instead, they would only be allowed to seek monetary damages. This is the same for every FRAND patent - no one has ever gotten an injunction over infringement of a FRAND patent;
3) when the ITC issued the import injunction for violation of the FRAND patent, Samsung was in breach of its FRAND agreements.
There are two results at that point - either the ITC import ban is vetoed, or the DoJ has to pursue Samsung for anti-trust violations. The former is vastly preferable for everyone.
And it did not affect the value of the patents, as their value was never based on injunctive relief, and the veto of the ITC decision in no way prevents Samsung from getting a judgement for damages in a regular court.
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.
Basically what you're saying is this:
We have sliding locks in real life.
When a sliding lock is used on a computer, all of a sudden it's a brilliant idea?
I'm not sure why you thought I was saying that. Do you think that we don't have computers in real life? What do you think I'm typing on right now.
Tell you what - go back and actually quote some part of my post, using that handy "quote parent" button or even copying and pasting old-school style, and then tell me where you think I said that adding "on a computer" to a patent claim makes it patentable. I'll wait.
Also, online, you could be anyone. Respectfully.
Yes, but I'm quoting the actual patent and citing to actual statutes, rather than trying to put words in someone's mouth that they never said. That tends to give me a bit of credibility that I may know what I'm talking about, rather than destroying any that one may have had.
Yes, but the patent claims something specific.
But isn't that just more of the "this function, that fumigation ON THE INTERNET" sort of thing?
Yeah, that sort of thing doesn't actually exist. Let's say you had a patent that claimed "this function, that fumigation" (we'll call that A), "ON THE INTERNET" (which we'll call B), then it claims A+B, right? Well, if you can find a reference that shows A, and you can find, say, the Internet, for B, then you can show the patent is invalid over those two references. And that should be pretty easy, yeah?
Thing is, there aren't actually any patents that have claims that say "[known function] ON THE INTERNET!" because that would be invalid as shown above. Now, people will describe the patent that way, or paraphrase it in such a manner, but that's not the actual claim, and invariably, the claim always turns out to be A+B+C+D+"on the internet" and some one or more of A-D aren't known.
Basically, "on the internet" is never the patentable key to a patent claim, even if it's in there. There's always some other bit that makes it different from what's known.
Like here, the fact that the patent claims a handheld electronic device doesn't mean that that's the patentable hook - it's just that it's one element. It's like if you claim a time machine that includes batteries, you're not saying that batteries are also new, just your flux capacitor, which happens to run on batteries.
" since it doesn't show a hand-held electronic device,"
that's just a narrowing down, it's still just a type of touch screen.
Yes, but the patent claims something specific. If that specific thing is not shown in the prior art reference, then you need to find another reference that shows that element. This shouldn't be too hard: I'm sure you can find a hand-held device in the field of computers before 2004.
The point is that you can't simply ignore an element in the claim because you're lazy, just like you can't convict someone of murder without anyone being dead because they totally look like a murderer. You have to actually find prior art elements for each and every element in the claim. If it's truly obvious, then that should be easy.
That's a huge part of the problem - the legalese obfuscates the engineering. An engineer would point out that the swipe changes state. That was already shown in the "prior art." Why should it matter whether it was on a handheld device?
That's the point - the legalese is engineering. Invaliding a patent claim is a function that requires a set of inputs, one input per claim element. The claim itself is Boolean logic, with a big ol' AND between every element. If you fail to put in an input, if you fail to find a piece of prior art showing that element, then you haven't invalidated the claim: A+B+C+__ is not the same as A+B+C+D.
So why should it matter whether it was on a handheld device? Because "handheld device" is in the claim. It's an element. That means you can't just ignore it, even if you think it's trivial, just like you can't ignore the inputs to a function. Go find that trivial element in the prior art. If it's truly trivial, then finding it should be easy, right?
And yes, "handheld device" is easy to find in the prior art. Now go do that for every element in the claim. If they're all as trivial as "handheld device", then it should be easy to invalidate the patent. The problem comes when you search and search for some element and can't find it anywhere, even if you believe in your gut that it should be easy.
the patent office assumes when a patent is filed for that company did the work to see if it was done before.
That's simply not true. Don't spread misinformation.
doesn't really show "continuous" movement as opposed to switching between several icons, and it doesn't show unlocking a device.
Actually the slider demoed at 2:58 in the video shows a static background image On ------- Off, with the 'slider' box moving continuously back and forth along with the gesture motion.
Maybe it's me, but I saw that as discrete jumps:
On -[]------ Off
On ---[]---- Off
On -----[]-- Off
On -------[] Off
But that starts getting into the question of "what does continuous mean" since everything is quantized. My point there was simply to note that the claims require "continuous", and that reference may not show visually continuous movement. But other references surely would, no?
The offensive thing here is that arrival of a portable touchscreen makes a lot of things about it obvious. We already had done the prior research on touch screen controls -- right up to and including the finding that the slide gesture in particular was just awkward enough that it was good for preventing accidental activation of the touch screen control.
Then a decade or so later, we have portal touchscreen device and they are looking for a touch screen control to access it that would be suitable -- the key characteristic being that it prevents accidental activation.
The arrival of a portable touchscreen alone doesn't make anything obvious, except a patent claim that just says "portable touchscreen". That's what I meant by those elements A+B+C+D. The touchscreen is just one element, A. If a patent only claims "A", then yes, it's obvious over that touchscreen. But if there are other elements, you have to then find those in the prior art, too.
Now, yes, touchscreen interfaces had been investigated, and those investigations resulted in other elements B, B', C, E, F, G+H, etc... But you can't ignore the steps when you're trying to prove a legal conclusion - you have to put all of those elements together and match what's in the claim.
It doesn't take a super genius to connect those dots. Slide-to-unlock was GOING to happen.
Well, that's the question - were all of the dots in the prior art that needed to be connected, or was there a missing dot? If there was a missing dot, by definition, it's not obvious.
During case about a year ago, there was a ton of Prior art given to the jury, But they decided to ignore it all cause as quoted "it would of taken to long".
Respectfully, I believe you're misquoting the jury there. They said that at the beginning of their deliberations they got bogged down on the bounce-back and pinch-to-zoom patents. To speed things up, they skipped past that patent and dealt with some of the other easier ones before returning. It's like if you've got 10 tasks and one is really difficult, it's frequently more efficient to get the 9 easy ones done first. It's certainly less depressing.
Apple being able to use home town jury that clearly will never rule against the home town company is a joke, then now Apple does have Obama on the take protecting from sales ban which should be in place on some apple products for stealing Samsung patents and refusing to pay for them.
... and here you just went off into full loony.