Apple trying to get S3 banned

[ardyer]

I'm pretty sure there's already a rule regarding patenting obvious ideas. It begs the question, if something is so obvious, why hasnt somebody already created those things by the year 2011?

Bear in mind it's not only the feature itself that's patentable but the context it's used in, so the fact that voice activated assistants appeared in star trek years ago does not mean people can't patent them for smartphones, or that Microsoft can't patent them for being in Kinect.

Don't get me wrong, I think the lawsuit is a ludicrous one, but mainly because of how Apple is trying to resolve it. If somebody owns a patent, it's their right to seek payment for the use of it by competitors, but asking for an outright ban is anti competitive and they're trying to become the monopoly that Microsoft was back in the day.

IMO it's not the patents that are the issues, it's Apple's attitude towards resolving patent conflicts.

As a US Patent attorney, I can verify that there is a rule against obviousness. However, there are a few key thinks most people don't understand about patents:

1. patent is granted several years after it is applied for, but obviousness has to be proven from before it was applied for. So three years later when it is granted, the idea may seem obvious even if it wasn't when the patent was filed.

2. Obviousness must be proven with evidence. You can't just say "that is obvious." Documentation of the claimed features existence prior to filing the application must be shown. And unfortunately, computer people don't document very well.

3. Only the patent's claims matter. The title and the description do not give any patent protection, only the claims. So the patent title might be something broad like "Voice recognition software," but the claims might contain very specific features and/or algorithms for implementing a particular type of voice recognition software. Such a patent wouldn't cover all voice recognition, just one implementation but the internet seems to think it covers all voice recognition.

It should be noted that the above example is hypothetical. I haven't looked at Apple's Siri patents so I have no idea what they claim and how broad or narrow they are.

 

[davoid]

Bear in mind it's not only the feature itself that's patentable but the context it's used in, so the fact that voice activated assistants appeared in star trek years ago does not mean people can't patent them for smartphones, or that Microsoft can't patent them for being in Kinect.

But I think this does mean they can't patent the idea. The estate of Gene Roddenberry owns that intellectual property doesn't it? I'd like to think so, anyway.

 

[ardyer]

But I think this does mean they can't patent the idea. The estate of Gene Roddenberry owns that intellectual property doesn't it? I'd like to think so, anyway.

You can't patent an abstract idea. One other thing about prior art is it must be "enabling." Going with the above example, the voice assistant in Star Trek doesn't include enough information to tell one how to build it. It just shows some future time when voice assistants exist. Therefore, it isn't enabling and can't be used to reject a patent on voice commands. Now, if there was an episode of Star Trek where one of the crew tediously went through the steps on how to build one (and those steps worked), then it might be prior art.

What Gene Roddenberry's estate would theoretically own would be a copyright on the scripts/performance of those star trek episodes and not any patent rights.

 

[chillibean]

The whole pantent system needs changing. If you read some of them, they are so vague, it's laughable. Not good for consumers.

I realise we need something to protect innovation, but the current system is broken

 

[Skeeter125]

This is what happens with the shitty political system and all these companies paying big money towards them, they get their ways even if it is complete and utter B.S

 

[shark974]

I think the real problem is, Apple is treated differently under the law then everybody else.

This is obvious. All these phone companies have patents, only Apple succeeds in getting other products banned with theirs.

I mean we heard Google bought Motorola for patent protection, but it didn't matter Google wont win any patent cases.

Apple has had literally police offers acting as an arm of Apple in the case of stolen iPhones in San Francisco, and searched a private citizens home with Apple officials who identified themselves a police by their side. If any other corporation did this there would be a huge out roar.

It's a lot like when Bill Clinton clearly perjured, and walked on it. In America the law applies differently to different people, and different corporations.

I mean I always wonder why it was ok for apple to steal Android's pulldown notification system, blatantly, let literally it's ok for Apple to patent rectangular phones. Never before in the history of products has this type of thing occurred.

Also, even the very term "iPhone" was trademarked before Apple (by Cisco, IIRC). Did it matter? Of course not, Apple just swooped in and took it, because theyre Apple and the law lets Apple do whatever they want.

I remember some guy explaining this on a message board, he said "iphone cant be trademarked, because the product is a phone. For example, iPod can be trademarked, because the iPod isn't a "pod". So Cisco will lose that case"

Of course Apple stole iPhone from Cisco and trademarked it anyway, which makes no sense according to what the guy was saying.

 

[jackdubl]

If it makes no sense then you probably have some of your facts wrong. I think wikipedia can help you there, where it explains what happened with the Cisco(Linksys) iphone.

 

[Covart]

I mean I always wonder why it was ok for apple to steal Android's pulldown notification system, blatantly, let literally it's ok for Apple to patent rectangular phones. Never before in the history of products has this type of thing occurred.

Open source code. There's your answer. Notification center was not trademarked, patented, xeroxed, or whatever. Blame Google for not making Android code proprietary.

 

[Eryl Flynn]

As a US Patent attorney, I can verify that there is a rule against obviousness. However, there are a few key thinks most people don't understand about patents:

1. patent is granted several years after it is applied for, but obviousness has to be proven from before it was applied for. So three years later when it is granted, the idea may seem obvious even if it wasn't when the patent was filed.

2. Obviousness must be proven with evidence. You can't just say "that is obvious." Documentation of the claimed features existence prior to filing the application must be shown. And unfortunately, computer people don't document very well.

3. Only the patent's claims matter. The title and the description do not give any patent protection, only the claims. So the patent title might be something broad like "Voice recognition software," but the claims might contain very specific features and/or algorithms for implementing a particular type of voice recognition software. Such a patent wouldn't cover all voice recognition, just one implementation but the internet seems to think it covers all voice recognition.

It should be noted that the above example is hypothetical. I haven't looked at Apple's Siri patents so I have no idea what they claim and how broad or narrow they are.

Thanks, this is details that go with what I was talking about. Star Trek is just part of it, an example of the idea and concept being there already so not even close to being open for patent.

I am not sure the details of the "structure" patent, but it sounds like it is the same as when we right click in an application. Single action to bring up a choice of actions.

As to algorithms, best case to point to is the Google Oracle case. 9 lines in millions matched. What are the odds that you will have a match writing code in a few lines? I would say almost a given when you are talking similar devices.

As for Cisco/iPhone/iOS yes read up, they came to a mutual licensing agreement. One reason you see EAP-Fast bundled into the iPhone and not Android. This is part of the relationship Cisco and Apple created due to the sharing/licensing of the names iPhone and IOS. The lawsuit never made it to court for this reason and it was not stolen.

 

[Skeeter125]

Open source code. There's your answer. Notification center was not trademarked, patented, xeroxed, or whatever. Blame Google for not making Android code proprietary.

Actually google did apply for a patent. In-Depth Analysis: Android's Notification Bar Patent (And How Apple May Or May Not Infringe It)

 

[rkkeller]

Not to be a bummer but ANYONE KNOW THE LATEST NEWS ON THIS SITUATION???

Apple held up my prerorder for the EVO LTE and I returned that to get this and now have no cell phone until the S3 comes.

So this topic is very important to me.

 

[Doit2it]

I think the judicial system is getting tired of Steve Job's legacy.

Apple v. Motorola patent case dismissed by frustrated judge | The Verge

Hopefully this will have some bearing in the HTC and Samsung cases.

 

[SamuraiBigEd]

The patent system is broken and Apple is trying to ride it to a monopoly.

Here are some points regarding that:

1. Software was not originally patentable, it fell under copyright protection because it was a compilation of code written by a programmer. It was not a tangible product that could stand on it's own. It needs to return to copyright where it belongs.

2. Actions were never patentable before Apple's applications. Patenting "slide to unlock" was a big slap in the face to the system. This is no different than me filing and receiving a patent on the baseball pitch and suing every pitcher on the planet. They can (under the new rules of software being patentable) patent the code required to do the action, but the action itself is not protected despite Apple's insistence that it is. Fortunately they got slapped down on the "finger swipe to change screens" application.

3. Digital assistants, once again you can patent the software, but not the actions. And these existed prior to Apple's application, as did many examples of Apple's patent library which leads to my next point.

4. Public Domain. Originally once something existed in the public domain and had established history it was no longer patentable. If you went to market and had something out there you had no protection but the "big evil corporation" also could not swoop in and patent your product. They could try but there would have to be substantial change and/or improvement to your original design. The same goes for existing patents, which now only have to be changed 10% to be eligible now.

5. The patent office is going broke and has adopted the attitude of "grant the patent and let it get duked out in court" so they can collect their fees.

 

[matttye]

The patent system is broken and Apple is trying to ride it to a monopoly.

Here are some points regarding that:

1. Software was not originally patentable, it fell under copyright protection because it was a compilation of code written by a programmer. It was not a tangible product that could stand on it's own. It needs to return to copyright where it belongs.

2. Actions were never patentable before Apple's applications. Patenting "slide to unlock" was a big slap in the face to the system. This is no different than me filing and receiving a patent on the baseball pitch and suing every pitcher on the planet. They can (under the new rules of software being patentable) patent the code required to do the action, but the action itself is not protected despite Apple's insistence that it is. Fortunately they got slapped down on the "finger swipe to change screens" application.

3. Digital assistants, once again you can patent the software, but not the actions. And these existed prior to Apple's application, as did many examples of Apple's patent library which leads to my next point.

4. Public Domain. Originally once something existed in the public domain and had established history it was no longer patentable. If you went to market and had something out there you had no protection but the "big evil corporation" also could not swoop in and patent your product. They could try but there would have to be substantial change and/or improvement to your original design. The same goes for existing patents, which now only have to be changed 10% to be eligible now.

5. The patent office is going broke and has adopted the attitude of "grant the patent and let it get duked out in court" so they can collect their fees.

The thing I've always thought was broken about the patent system, and I'm not sure there's any easy way to resolve this, is that somebody could come up with the same ideas of their own accord and implement it in the same way too. If I decided to write some software and implement a slide to unlock gesture for touchscreen devices, but I had never heard of Apple's iPhone, why should I have to pay anybody for that if it was my idea? Seems ridiculous to me.

 

[lunatic59]

5. The patent office is going broke and has adopted the attitude of "grant the patent and let it get duked out in court" so they can collect their fees.

^^This.

Giving credence to the old lawyer joke: "What do you call 100 lawyers buried up to their necks in sand?"

Spoiler

Not enough sand.

 

[ardyer]

The patent system is broken and Apple is trying to ride it to a monopoly.

Here are some points regarding that:

1. Software was not originally patentable, it fell under copyright protection because it was a compilation of code written by a programmer. It was not a tangible product that could stand on it's own. It needs to return to copyright where it belongs.

I can't believe I'm doing this, but here it goes. This is just flat out wrong. The 1951 Patent Code (the code currently in effect) stated that "methods" were patentable. The general assumption by the Patent Office was that software wasn't patentable. However, in 1981, the Supreme Court stepped in and declared software to be patentable. The case is Diamond v. Diehr. Many programmers thought software was patentable, hence the lawsuit against the Patent Office for denying patents to software. So software was patentable, the USPTO was just improperly denying patents on it.

2. Actions were never patentable before Apple's applications. Patenting "slide to unlock" was a big slap in the face to the system. This is no different than me filing and receiving a patent on the baseball pitch and suing every pitcher on the planet. They can (under the new rules of software being patentable) patent the code required to do the action, but the action itself is not protected despite Apple's insistence that it is. Fortunately they got slapped down on the "finger swipe to change screens" application.

Again, this is just flat out wrong. Methods, e.g. actions, have been patentable for a long, even before the 1951 act they were allowable under common law. In a non-software setting there was a famous case from the 1940's over a patent covering the use of a well-known chemical as a pesticide. In a software context, "action" patents have been common since the 1990s.

3. Digital assistants, once again you can patent the software, but not the actions. And these existed prior to Apple's application, as did many examples of Apple's patent library which leads to my next point.

I haven't looked at the Apple's Siri patents, but I can promise you they don't cover all digital assistants. If you look at the claims and not an overlybroad title or abstract, they will only cover a very limited implementation.

4. Public Domain. Originally once something existed in the public domain and had established history it was no longer patentable. If you went to market and had something out there you had no protection but the "big evil corporation" also could not swoop in and patent your product. They could try but there would have to be substantial change and/or improvement to your original design. The same goes for existing patents, which now only have to be changed 10% to be eligible now.

As a Patent attorney, I have no idea where this 10% thing comes from. I've practiced for several years now and never, ever heard this. Not in law school, not in the patent bar exam, not in my yearly CLEs, and certainly not in the Manual of Patent Examination and Procedure put out by the patent office.

Further, if you look at the law, it includes "any new and useful improvement thereof" as patent eligible subject matter (35 USC 101). This means that something in the public domain, if improved in a novel and non-obvious way, is eligible for patenting. Again, I'll refer back to the pesticide case I mentioned earlier. The chemical at question was long known and well in the public domain. Yet a patent was granted and upheld for using it as a pesticide.

Finally, you can (currently, the law changes in March) bring a product to market and then file for a patent. 35 USC 102(b) grants a 1 year grace period from when you introduce your invention to the public to when you can no longer file for a patent. Plus, if someone else where to try to file a patent after you introduce it, your invention would be immediately usable as prior art against their application. And if you file for one, and interference action would be conducted to determine who actually invented it.

5. The patent office is going broke and has adopted the attitude of "grant the patent and let it get duked out in court" so they can collect their fees.

Just sayin', but the general consensus among the legal community is that the Patent Office's attitude is "deny, deny, deny."

 

[ardyer]

The thing I've always thought was broken about the patent system, and I'm not sure there's any easy way to resolve this, is that somebody could come up with the same ideas of their own accord and implement it in the same way too. If I decided to write some software and implement a slide to unlock gesture for touchscreen devices, but I had never heard of Apple's iPhone, why should I have to pay anybody for that if it was my idea? Seems ridiculous to me.

There are currently two ways of doing this: The first to file for the invention is entitled to it; and the first to invent is entitled to the patent. Currently, the US is the only country that follows the later and that changes in March of 2013.

Here is the thing though, ideally if it was that easy for multiple inventors to simultaneously invent the same invention, it is probably going to get rejected as obvious. Even using the Slide-to-unlock example, if you read the patent claims, it is actually pretty narrow. I laughed at the video that people were saying was prior art when Apple got that patent, because it wasn't. There were several claim limitations that were not present in the software presented in that video. People just freaked out at the title because that sounds like it covers all slide to unlock systems, when it did not. You just have to look at the claims to see that, not the title or the abstract.

 

[matttye]

There are currently two ways of doing this: The first to file for the invention is entitled to it; and the first to invent is entitled to the patent. Currently, the US is the only country that follows the later and that changes in March of 2013.

Here is the thing though, ideally if it was that easy for multiple inventors to simultaneously invent the same invention, it is probably going to get rejected as obvious. Even using the Slide-to-unlock example, if you read the patent claims, it is actually pretty narrow. I laughed at the video that people were saying was prior art when Apple got that patent, because it wasn't. There were several claim limitations that were not present in the software presented in that video. People just freaked out at the title because that sounds like it covers all slide to unlock systems, when it did not. You just have to look at the claims to see that, not the title or the abstract.

I'm not necessarily saying that two people would invent something simultaneously; what if I came up with the idea years after the patent holders' product was already on the market? Do I then need to search a patent database to see if any of the features are already in use?

---

Back on topic; I don't have a problem with apple suing over people using its patents, but it does seem to be the only company furiously trying to get competing products banned. It would surely be in the interests of the consumer and the spirit of competition to seek damages, not get the product banned completely.

It may be that other companies do this but don't get media attention, I don't know.

 

[Eryl Flynn]

I'm not necessarily saying that two people would invent something simultaneously; what if I came up with the idea years after the patent holders' product was already on the market? Do I then need to search a patent database to see if any of the features are already in use?

---

Back on topic; I don't have a problem with apple suing over people using its patents, but it does seem to be the only company furiously trying to get competing products banned. It would surely be in the interests of the consumer and the spirit of competition to seek damages, not get the product banned completely.

It may be that other companies do this but don't get media attention, I don't know.

You just hit the nail on the head, it would make Apple a lot of money to sue them and get licensing fees. But what if you can't win? But you have enough of a patent, and case to make people stop, think and block the sale for you to limit competition? Odds are if this patent case was taken to court, Apple would lose. So instead of sueing, they are trying to take advantage of the ITC. This is a good reason why we should have never signed on with it.

In the end, to them there is no down side. You slow down the competition, or your request is thrown out

 

[SamuraiBigEd]

I can't believe I'm doing this, but here it goes. This is just flat out wrong. The 1951 Patent Code (the code currently in effect) stated that "methods" were patentable. The general assumption by the Patent Office was that software wasn't patentable. However, in 1981, the Supreme Court stepped in and declared software to be patentable. The case is Diamond v. Diehr. Many programmers thought software was patentable, hence the lawsuit against the Patent Office for denying patents to software. So software was patentable, the USPTO was just improperly denying patents on it.

Methods maybe, but not actions, you can't patent a physical human gesture or action. And as I said, "originally", as you point out there was a later decision instituting software patents.

Again, this is just flat out wrong. Methods, e.g. actions, have been patentable for a long, even before the 1951 act they were allowable under common law. In a non-software setting there was a famous case from the 1940's over a patent covering the use of a well-known chemical as a pesticide. In a software context, "action" patents have been common since the 1990s.

You are confusing things here by mixing definitions. Actions, as in the act of using a chemical product in a manner not previously used to elicit a different outcome is not the same as using a finger gesture to switch between screens or to slide a lock screen. Apple claims it's patent on "slide to unlock" applies to the action itself and no other manufacturer can use any form of "slide to unlock", as was their claim in the denied "finger swipe to move between screens". This has been the basis of some of their legal claims.

I haven't looked at the Apple's Siri patents, but I can promise you they don't cover all digital assistants. If you look at the claims and not an overlybroad title or abstract, they will only cover a very limited implementation.

Nor did I say they covered all digital assistants, once again this is a case of Apple claiming they do and claiming that the physical action of using one is their patented invention. Apple has a history of copying a product or program and marketing it as their own invention, as evidenced by some of Steve Jobs own comments in his biography.

As a Patent attorney, I have no idea where this 10% thing comes from. I've practiced for several years now and never, ever heard this. Not in law school, not in the patent bar exam, not in my yearly CLEs, and certainly not in the Manual of Patent Examination and Procedure put out by the patent office.

While not a written code it is something I have heard from the mouths of several patent attorneys on numerous occasions. This may be an example of the patent attorney equivalent of an "ambulance chasers" tactic. So I will defer to you on this.

Further, if you look at the law, it includes "any new and useful improvement thereof" as patent eligible subject matter (35 USC 101). This means that something in the public domain, if improved in a novel and non-obvious way, is eligible for patenting. Again, I'll refer back to the pesticide case I mentioned earlier. The chemical at question was long known and well in the public domain. Yet a patent was granted and upheld for using it as a pesticide.

This is something I have always found objectionable. If a patent exists for an item, say a self-sealing drain stopper and here comes somebody else that adds a handle to it that should not be patentable but in many cases it is allowed. Yes if you change the intended use of an item, make that self-sealing drain stopper a plugging unit for off-shore oil platforms you have shifted intent and any improvements made for that purpose add to the uniqueness of the item.

Finally, you can (currently, the law changes in March) bring a product to market and then file for a patent. 35 USC 102(b) grants a 1 year grace period from when you introduce your invention to the public to when you can no longer file for a patent. Plus, if someone else where to try to file a patent after you introduce it, your invention would be immediately usable as prior art against their application. And if you file for one, and interference action would be conducted to determine who actually invented it.

I may be in error on this, I am going on old information where people found public domain items that had never been patented, filed for and received a patent. I would hope this would not have been allowed to continue.

Just sayin', but the general consensus among the legal community is that the Patent Office's attitude is "deny, deny, deny."

Once again, this is a statement I have heard from patent attorneys.

Much of what was said was a condemnation of Apples practices but I feel there is a major renovation needed at the USPTO.

Thanks for the discourse, I am enjoying it greatly.

 

[jcp007]

It has been said that the GS3 was designed with the help of lawyers. I have said that we should stop with what appears to be a groundless claim and have Apple deploy their newest iPhone. Then, we can have a throwdown to see who is best. Apple needs to be careful and not overreach as Samsung makes the chips for Apple and holds a number of LTE patents critical to the new iPhone's success.

 

[Skeeter125]

It has been said that the GS3 was designed with the help of lawyers. I have said that we should stop with what appears to be a groundless claim and have Apple deploy their newest iPhone. Then, we can have a throwdown to see who is best. Apple needs to be careful and not overreach as Samsung makes the chips for Apple and holds a number of LTE patents critical to the new iPhone's success.

Apple won't play that way though. They like to take their good old time releasing a product and most likely the reason they are doing this is because of how well the sgs2 sold and how well the sgs3 is already selling only being out a short period of time. Apple feels that they can push around everyone and want to slow down the potential lost sales that the sgs3 would take since the i5 is not out yet or anytime soon most likely.

 

[Covart]

Apple won't play that way though. They like to take their good old time releasing a product and most likely the reason they are doing this is because of how well the sgs2 sold and how well the sgs3 is already selling only being out a short period of time. Apple feels that they can push around everyone and want to slow down the potential lost sales that the sgs3 would take since the i5 is not out yet or anytime soon most likely.

You may think that there would be "potential" lost sales, but in reality many of us iPhone users just got tired of the same OS (hasn't changed much in 5 years), got tired of playing cat and mouse with Apple over jailbreaking, don't believe the iPhone is the best phone any more or all of the above (my personal feeling). This is why there have been so many Android phone posts on Macrumors in the last few month.

And if the rumors and pics about the iPhone 5 are true (stretching the phone to reach 4", but not widening), then I think we may see even more converts. Those pics make the ip5 look god aweful.

I still like the ipad and Mac computers, but I will personally never buy another iphone. Besides, the S3 is the top of the foodchain, and I doubt that will change any time soon. The HOX doesn't match the S3 because of the missing hardware (sd card and no changeable battery).

 

[SamMax]

I still love Apples products (the ones I can afford anyway) but lawsuit after lawsuit is driving me to despise the company.

Anyone can guess that S voice (should have named it Samsung Voice just to make it less obvious) is an imitation of Siri.

Just remember how obvious Apples notifications was a rip off from Android.I can't recall if Google sued for that or not, but these latest lawsuits seem all fear based. Apple knows they are more behind the curve now than ever and HTC & Samsung may have made devices that will have Apple fans wondering if Apples next iPhone will be "the Android killer".

 

[matttye]

You may think that there would be "potential" lost sales, but in reality many of us iPhone users just got tired of the same OS (hasn't changed much in 5 years), got tired of playing cat and mouse with Apple over jailbreaking, don't believe the iPhone is the best phone any more or all of the above (my personal feeling). This is why there have been so many Android phone posts on Macrumors in the last few month.

And if the rumors and pics about the iPhone 5 are true (stretching the phone to reach 4", but not widening), then I think we may see even more converts. Those pics make the ip5 look god aweful.

I still like the ipad and Mac computers, but I will personally never buy another iphone. Besides, the S3 is the top of the foodchain, and I doubt that will change any time soon. The HOX doesn't match the S3 because of the missing hardware (sd card and no changeable battery).

I like Apple products too, I just despair of their small steps approach with everything. Other than the original iPhone, every other company has taken massive leaps forward in features and in tech but ios updates have basically added a couple of majorly requested features and a bunch of other small ones.

Still, be interesting to see what iOS6 brings tomorrow.