[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.]