[Update, October 23, 2012: As an anonymous commentator points out (with this link), the US Patent Office has tentatively invalidated Apple’s silly patent on the rubber-band effect in the iPhone’s user interface.

Update II, December 19, 2012: in re-examination, the USPTO has rejected much of the ‘915 patent, too.]


Humanity’s scientific progress never ceases to amaze. Recently, we successfully shot the Mars Curiosity rover from our home planet (moving at 66,000 miles per hour) at a target smaller than the State of New Hampshire on another plant (itself moving at 54,000 miles per hour) over 30 million miles away, where it now tweets pictures to us; and, the Large Hadron Collider smashed together billions of protons all at once to successfully take a picture of the shadow of something — the very something that makes us things, not just bundles of energy — that only exists for less than a billionth of a billionth of a second.


Oh, and Samsung owes Apple more than a billion dollars because it made smartphones in which, if you spread your fingers apart, it will zoom out on the document, smartphones in which the objects on the screen roll around and bounce back like you’re spinning the Wheel of Fortune.


On December 14, 2007, Apple laid claim to the supposed novel invention of “list scrolling and document translation, scaling, and rotation on a touch-screen display,” the formal title of United States Patent 7,469,381 B2, with a patent application granted after a year-long review by the patent office that apparently didn’t include watching this scene from 2002’s Minority Report, where Tom Cruise does all of those things and more with a spiffy 3D interface.


There has been plenty of good reporting on the Apple v. Samsung case, like this pre-verdict summation from Wired and this easy summary of the verdict from Huffington Post, so I don’t won’t recite the basics. On the more critical side, Groklaw has rightly questioned a number of problems with the jury verdict, and we’ll likely hear more about that over the next month or so. I raised my own concerns at the beginning of the trial that Judge Koh seemed to be unduly harsh on Samsung’s lawyers, both in restricting the use of evidence and in trying to control Samsung’s public relations.


There’s also all kinds of interesting inside-baseball going on here, from the curious fact that Samsung is one of the largest suppliers of iPhone and iPad components to the role of Google as the wizard behind the curtain because its Android operating system underlies Samsung’s user interface. There’s also some contrarian opinions out there that $1 billion was, all things considered, a modest cost for Samsung to be both the largest manufacturer of smartphones and to be considered as a peer with Apple in terms of design and user interface.


Two thoughts, one on the nitty-gritty of the law, the other on the big picture of the law.


On the nitty-gritty, going forward, The Verge correctly describes what’s next, i.e. post-trial motions from both sides, and it’s anyone’s guess what happens then. I find it exceedingly unlikely that Judge Koh is going to grant much relief one way or the other; significant post-trial relief usually only occurs where the judge made an unusually great error, so great that it’s obvious even to them, or where something unexpected and highly prejudicial happened during the trial.


To me, the most interesting issue at this point is whether or not Judge Koh grants an injunction against Samsung. There are two points that make it — at least in my opinion — unlikely that she will grant the injunction. First, to everyone’s surprise, although back in June Judge Koh granted a preliminary injunction against Samsung’s Galaxy Tab 10.1, that was one of the very few products that escaped an actual infringement finding from the jury, and so Samsung has (rightly) asked that the injunction be dissolved. That sort of sharp disparity between the judge’s findings at a preliminary injunction and the jury’s findings of the actual trial would give any judge pause. Second, Samsung’s lawyers will no doubt cite, and Judge Koh will no doubt read, Judge Posner’s highly persuasive opinion in the Apple v. Motorola Mobility case finding that an injunction there was pointless and unwarranted, because both sides had more than adequate monetary remedies available.


On the big picture, although every case proceeds at its own pace in the post-trial stage, it seems exceedingly likely that the Apple v. Samsung and Apple v. Motorola case will both be on appeal in front of the Federal Circuit at the same time, and, since both go right to the heart of the smartphone patent wars, the appellate judges might make a concerted effort to make the two opinions consistent, and may even end up releasing them on the same day. Given the stark contrast between the two cases results — one dismissed without even bothering to submit it to a jury, the other resulting in a jury verdict — the Federal Circuit might be primed for a major opinion on these types of patents, on issues ranging from the validity of the patents to the level of proof required to prove damages in smartphone patent cases.


Admittedly, “these types of patent” is a loose way for me to describe the cases, because on the surface they involve quite different forms of patents. Apple v. Samsung involves “design” and “utility” patents relating to how the iPhone looks to and works for users, while Apple v. Motorola Mobility involves, among other patents, a software-based signal processing system for realtime data transmission. But the patents at issue do share one common trait: they are all unworthy of patent protection.


Not one of the patents at issue in any of these cases will fly you to Mars, or split photons, or even help you build a working smartphone. They are either design choices that should be covered by trademark law only — where the plaintiff has to prove a “likelihood of confusion” among consumers to recover, as opposed to owning a monopoly on the “invention” like in patent law — or they are obvious technological approaches that have been standard in the computer science industry for years but are now being applied to the world of cell phones.


Consider the core patent in the Apple v. Motorola Mobility, U.S. Patent 6,343,263, one of the few patents at issue at least nominally relates to building a working smartphone. The ‘263 patent merely “teaches,” to use the patent law lingo, that “[i]t is desirable, therefore, to provide a data transfer system that can handle each of two or more types of data at isochronous rates,” something that has been “desirable” in the world of computer science for decades, and so Apple “invented,” to use the term quite loosely, the following device:


1. A signal processing system for providing a plurality of realtime services to and from a number of independent client applications and devices, said system comprising:

a subsystem comprising a host central processing unit (CPU) operating in accordance with at least one application program and a device handler program, said subsystem further comprising an adapter subsystem interoperating with said host CPU and said device;

a realtime signal processing subsystem for performing a plurality of data transforms comprising a plurality of realtime signal processing operations; and

at least one realtime application program interface (API) coupled between the subsystem and the realtime signal processing subsystem to allow the subsystem to interoperate with said realtime services.


That is just as uninventive and obvious as the FourSquare patent (apparently owed by both Facebook and Google) I wrote about almost two years ago. Asynchronous data processing is old-hat, as is parallel processing to ensure multiple realtime transfers. As Apple’s own expert argued, Motorola could avoid the patent entirely by merely “purchasing an additional chip to provide dedicated audio and video decoding capabilities” — a conclusion that Judge Posner attacked, noting that the expert hadn’t bother to explain what that chip was and how much it would cost to design and implement, and thus had failed to prove the core component of their damages case.


Society needs robust intellectual property protections to ensure sufficient investment in innovation, but let’s be honest: nobody genuinely thinks that any of these “inventions” were anything other than large corporations exploiting the patent process by filing patents for every last “idea” that their engineers had, no matter how obvious or trivial, and then paying lawyers to litigate the dickens out of it with the patent office.


Steve Jobs’ pledge to go “thermonuclear” on Android as a “stolen product” is even more revealing when you consider what, deep down, the iPhone is and why it made such a difference in the world, to the point that iPhone sales alone are greater than Microsoft’s entire revenue. Take it from no less an Apple supporter than John Gruber, describing why the iPhone was so successful and disruptive:

It was the world’s best portable computer. … It was the best because it was always there, always on, always just a button-push away. The disruption was not that we now finally had a nice phone; it was that, for better or for worse, we would now never again be without a computer or the Internet. It was the Mac side of Apple, not the iPod side, that set the engineering foundation for the iPhone.

What’s happened over the last five years shows not that Apple disrupted the phone handset industry, but rather that Apple destroyed the handset industry — by disrupting the computer industry. Today, cell phones are apps, not devices.

It’s not like Apple suddenly realized in 2007 that people wanted computers for phones. Consider Bill Gates’ 1995 The Road Ahead:

What do you carry on your person now? Probably at least keys, identification, money, and a watch. And maybe credit cards, a checkbook, traveler’s checks, an address book, an appointment book, a notepad, something to read, a camera, a pocket tape recorder, a cellular phone, a pager, concert tickets, a map, a compass, a calculator, an electronic entry card, photographs, and maybe a loud whistle to call for help.


You’ll be able to keep equivalent necessities — and more — in an information appliance I call the wallet PC. It will be about the same size as a wallet, which means you’ll be able to carry it in your pocket or purse. It will display messages and schedules and let you read or send electronic mail and faxes, monitor weather and stock reports, and play both simple and sophisticated games. At a meeting, you might take notes, check your appointments, browse information if you’re bored, or choose from among thousands of easy-to-call-up photos of your kids.


How well did he call it? He even mentioned Apple’s latest iPhone enhancement, Siri: “You might ask, ‘Where’s the closest Chinese restaurant that’s still open?’ and the answer will be transmitted to your wallet by wireless network.  … At first we’ll have to stick to a limited vocabulary, but eventually our exchanges with our appliances will become quite conversational.”


Should Bill Gates have been granted a patent on everything he mentioned in his book, from the use of GPS on cell phones to ordering Chinese by talking to your phone? Of course not. A mere idea has never been enough for a patent, Diamond v. Diehr, 450 U.S. 175, 185 (1981), but somehow our patent laws have gone so far astray in the world of computer technology that this distinction has been lost.


The iPhone became huge — and Apple became the largest company by market capitalization in the world — because Apple made the thing work, not because it added rounded corners to its phone (one of the patents) or because it displayed icons on a grid (another one of the patents).


There comes a point where even the courts, often the last institution in society to effectuate any sort of change in the status quo, understand that the law as it exists today is doing more to hinder progress than to help it. That time should be now.

[Update: There’s a discussion of this post over at Hacker News. One common misconception that has appeared there is a belief that Apple’s ‘381 patent covers the actual technological underpinnings of the iPhone interface, i.e. the software programming and the hardware design. It does not; the patent is, just as it says, a patent on the way the user interface acts in response to finger movements, something that any competent software programmer can implement in a short time.

Pay close attention to the prior art cited by the ‘381 patent itself, and you’ll see literally dozens of prior patents relating to scrolling interfaces. The USPTO’s Notice of Allowability said Apple was granted the patent because:

The following is an examiner’s statement of reasons for allowance: In regards to the independent claims 1, 19 and 20, the prior art found does not teach in response to an edge of the electronic document being reached while translating the electronic document in the first direction while the object is still detected on or near the touch screen display: displaying an area beyond the edge of the document, and displaying a third portion of the electronic document, wherein the third portion is smaller than the first portion; and in response to detecting that the object is no longer detected on or near the touch screen display, translating the electronic document in a second direction until the area beyond the edge of the electronic document is no longer displayed to display a fourth portion of the electronic document, wherein the fourth portion is different from the first portion; in combination with all of the other claim limitations.

It’s the type of “invention” only a lawyer could love. It’s like if you “invented” the wheel because your wheel was exactly 26.6″ in diameter and 8.3″ wide with seven spokes, whereas all other wheels were of slightly different sizes and with a different number of spokes. In truth, none of those variations on the wheel — or the appearance of a touchscreen —  should be patentable, because they are all obvious to a person skilled in the art. KSR Intern. Co. v. Teleflex Inc., 127 S. Ct. 1727, 1740 (2007)(“If a person of ordinary skill can implement a predictable variation, § 103 likely bars its patentability.”) Notice the word implement there: a patent is supposed to teach practitioners of an art something novel and useful, that’s why we grant patent holders the extraordinary power of a legal monopoly. It’s not supposed to be a prize for every conceivable small modification.]

  • Bill Gates would have known the way to protect his iPhone invention was to license it and let all the phone manufacturers make iPhones — Samsung probably never would have made an Android phone.

    Apple invented the iPhone. Everyone knew it was a game changer. But Apple didn’t change its business model and instead it did what it always does and tried to protect its IP solely with the patent system. Time will tell if the Bill Gates approach or the Steve Job’s was the way to go.

    • Did you catch the first piece of prior art cited by Apple’s ‘381 patent? “US5495566 Nov 22, 1994 Feb 27, 1996 Scrolling contents of a window.” The original assignee? “Microsoft Corporation.” That design patent includes “the variable speed is proportional to the acceleration of the mouse cursor,” essentially the same thing patented — only with the addition of using your finger — by Apple more than a decade latter. It is time for this madness to stop.

      • anon

        I’m fully in agreement with you on the ethical questions, but thought you might be missing that all the “translating the electronic document in a second direction…” language in the justification for the ‘381 patent is specifically about that little bit of spring-like overshooting that occurs when reaching the top or bottom of a page, no? I’d still like to see all such patents invalidated, but this one might be a *touch* less ridiculous than the others, since at least there might not be prior art for that bit of novelty. (I don’t think the Minority Report UI does it, for example.)

        • I think there’s a big answer and a little answer to that.

          For the big answer, do you think the mere idea to make the document bounce a little bit is worth a patent? I don’t. Patent law exists as a social compromise: if you disclose to the public how to make something novel and useful, you in turn get a limited monopoly on it. Is the little bounce novel and useful? Not in my opinion, not novel and useful enough to warrant patent protection.
          For the little answer, turn to the prior art. Consider, for example, US20060048073, Nov 12, 2004, Microsoft Corp., “Scrolling web pages using direct interaction,” which includes, inertia scrolling, i.e. “the length of the predetermined period of time is based on one of the speed, acceleration, or distance of scrolling of the displayed information in tandem with moving the cursor in the display area.” Or US6690387, Dec 28, 2001, Feb 10, 2004, Koninklijke Philips Electronics N.V., “Touch-screen image scrolling system and method,” which also involves inertia scrolling (in more detail). Once you have that, is the bounce really non-obvious and not anticipated by prior patents? It really is the same bounce you see on, say, the Wheel of Fortune.
          It’s cute, sure, a good idea, even. An invention worthy of a monopoly? I wouldn’t go that far, and it’s nuts to claim it’s worth tens or hundreds of millions of dollars or to enjoin a product for it.

        • anon

          Thanks for that response — specifically for reminding about patent protection’s intention to cover novel *and useful* inventions — and for pointing toward the prior inertia scrolling patents. Hopefully we’ll eventually reach a point where the detriment to society these sort of patents pose is so obvious to all that reform becomes inevitable.

  • jamesdbailey

    There is little disagreement among tech people that the current US patent system is very broken. Yet another discussion of how broken it is is uninteresting. What I’ve never seen is a reasonable attempt to describe how the situation can be fixed. Companies and individuals have software and business patents that are worth $ billions. Can we just wish them away? I don’t think that will be politically possible given the near worship of intellectual property in Washington.

    So the question is, how do we fix this mess? I’ve never seen any comprehensive discussion of a real solution. Until something is done, companies like Apple are going to use the existing law in their favor and decry those same laws when they are on the losing side. Companies the size of Apple, Samsung or Microsoft have little to fear from the mess that is the US patent system but smaller companies are going to be pushed out and the latest changes to use first to file is only going to make it worse.

    • Judge Posner has shown one path to reform: start subjecting patent infringement cases to the same levels of proof that have been demanded of other cases. Every day, mass torts cases like environmental contamination and pharmaceutical negligence cases are dismissed because plaintiffs didn’t prove, with exacting scientific evidence, exactly how the harm was caused and what the damage was. I can tell you from litigating both pharmaceutical injury cases and patent infringement cases that the former involves far, far higher burdens of proof. Posner finally applied that same level of rigor to the Apple v. Motorola claims, and the result was a dismissal of all claims. I’d like to see the same judicial scrutiny of invalidity claims, as well; the federal courts bend over backwards to dismiss injury claims against drug and medical device companies on scientific grounds, why not do the same for tech patent claims?

  • cnu

    “It’s like if you “invented” the wheel because your wheel was exactly 26.6″ in diameter and 8.3″ wide with seven spokes, whereas all other wheels were of slightly different sizes and with a different number of spokes.”

    If the 26.6″ dia and 8.3″ wide, seven spoke wheel has a significant improvement in efficiency, it is worth patenting it. Companies spend lot of dollars on R&D to find this exact dimensions by testing on thousands of other dimension wheels.
    If the company can’t protect its investment by patenting it, then every other wheel maker will simply copy the numbers and create a cheaper version.

    • Extending patent protection to every last improvement of every product will quickly cripple technological progress with litigation and licensing fees. Do you think cars would have developed as rapidly as they did if every single change in the wheels, tires, windshield, cylinders, intake, exhaust, doors, et cetera had been granted a monopoly for more than a decade? Are the benefits of a monopoly on every new design worth that extraordinary degree of economic drag?

      Consider this hypothetical: if in 2007, we had abolished all software and design patents, do you think the iPhone would have been developed? If we had abolished all software and design patents in 1995, do you think technology would be better or worse than it is today?

      While we’re at it, there’s another issue: if you allow a patent of every tiny modification, then you also allow others to avoid infringement by just making a tiny modification, because that tiny modification is yet another “invention” worthy of protection. That’s part of what Judge Posner was getting at: the flip side of having a very narrow patent is that very narrow changes allow a workaround.

      • If software patents we’re abolished, imho, all manufacturers will cease creating the next big thing and just wait until a competitor spend their r&d money and copy it 1:1.

        Why spend money if we can always copy it without any fear of litigation.

        • Not at all: software would remain vigorously protected by copyright laws. Unauthorized selling of code, compiled and not compiled, is copyright infringement. Unauthorized copying of the creative content of software is copyright infringement. Competitors would, however, be able to, for example, spot an implementation of something and then create their own implementation. Is that so wrong?

          I have no doubt that Windows, OS X, and Words With Friends would have been written just the same; indeed, under the strong visions of patent advocated by some of the people commenting in support of Apple v. Samsung, Words With Friends wouldn’t exist, because Hasbro would have patented “a method for implementing a board game involving words on a mobile computer device” and whatnot.

        • TJ

          That’s a very naive view. Copyright protection is very, very narrow. If anyone could “spot an implementation of something and then create their own implementation,” there would be far less incentive to innovate. R&D budgets would shift to reimplementation budgets. Sure there’d still be some incentive to innovate to solve problems, but the incentive would not justify the same level of investment. If you really think we’d have the same Windows, OSX, and Words With Friends without the same level of investment in r&d, you really don’t understand how the software industry works.

          I think it’s generally accepted that there are a lot of bad software patents out there. But to simply throw out software patentability altogether without some alternate protection would be far worse for innovation than the bad software patents.

          What we need is a more nuanced system that affords different levels of protection for different areas of industry. For instance, in pharma, a 20 year duration makes a lot more sense, as development cycles are a lot longer. In software, 20 years is an eternity.

        • You argue as though there are massively well-funded software R&D departments out there experimenting with all kinds of radical software solutions, the way that Bell Labs worked with microchips in the 1960s. By and large that’s not how the coding industry works. There are programmers out there who either (1) have a particular user-side design they are trying to implement as a matter of code or (2) have behind-the-scenes problems they need to solve, like reducing battery drain from apps or showing HD graphics with limited processing power. Neither is done through “inventing” new ways of programming, they are done through improved implementation.

        • TJ

          So basically, you believe that any innovation through programming is merely an improvement in implementation? Why even bring up the argument that the patents are “obvious technological approaches that have been standard in the computer science industry for years but are now being applied to the world of cell phones,” if your premise is based on the belief that there are no inventions in software? It shouldn’t matter if they’re obvious improvements or not under your view of programming since they’re merely improvements in implementation.

          And I’m not arguing that there are massively well-funded software R&D departments experimenting like Bell Labs. I’m arguing that there are well-funded R&D departments that are trying to solve problems (behind-the-scenes or not). Believe it or not, most inventions are created in a direct attempt to solve a recognized problem, as opposed to “experimenting with all kinds of radical […] solutions.” Regardless of the “inventive” nature of software patents, copyrights simply don’t afford enough protection to justify the budgets for r&d that goes into solving many of these problems.

        • No, I do not believe that “any” programming innovation is merely an improved implementation, but I do believe that most of the software patents that have been granted today are, in fact, merely improved implementations (or simply an old technique applied to a new situation).

          I think we’ve reached the point where we are arguing about an empirical question that would take a whole lot more evidence from both of us to prove one way or the other. In the context of our abstract discussion, though, I do want to note an interesting proposed rule of thumb I saw in the comments over at Hacker News: an “invention” is not worthy of a patent unless it would warrant publication in peer-reviewed journals within its field. Putting aside issues of proof (which are a problem under any legal framework), I think that sort of rule would address both of our concerns by separating the wheat from the chaff: truly major developments, the type that result from extensive research and development budgets, would remain protected, while silly implementation ideas like screen bouncing or pinch to zoom would not.

      • Just a quick addendum: as another example of patents crippling innovation, see the Wright brothers patent war.

  • James Banner

    Just a matter of time before someone patents “blogging” that is done by a title and descriptive text about the matter! Really Patent industry should die that includes Patent Trolls, Patent lawyers, Patent “experts”, Patent Extrots(like Apple,Microsoft) etc.

    • There are a depressing number of “transferring information over a computer” patents out there, like the FourSquare patent I discussed.

  • ravisingh62

    One could argue that LG “invented” the Iphone. The LG prada was a black rectangle with rounded corners and a touchscreen.

  • It’s pretty clear you didn’t read my post. Nonetheless, taking your comment at face value, a little bounce at the end of scrolling is a cute design interface trick, it’s not an invention worthy of patent protection. Simple as that.