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back to article Watch out, Apple: HTC ruling could hurt your patent income

Apple may review its patent licensing and enforcement strategy in light of a ruling by the UK's High Court last week, an expert has said. On 4 July the High Court ruled that three European patents that Apple sought to rely on in legal proceedings against HTC were invalid and that the Taiwanese device manufacturer had not been …

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Hear, hear!

A rare voice of sanity in that judgement: patenting should not be about the bleedin' obvious to a skilled team of designer or engineers.

I am not an Apple user (at the moment, their current hires display MacBook pro is tempting!), but I am quite happy to admit that Apple has done genuinely innovative stuff. However, this "invention" was a case of scraping the barrel. I feel it should. There are plenty of other players in the market scrapping the barrel in the same way. I do hope (vainly, no doubt) that this trends is brought to a halt.

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Re: Hear, hear!

Does this judgement invalidate the patents (pending appeal of course) and make them unusable in any other patent trolling in any other jurisdiction?

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Re: Hear, hear!

No, but it does allow companies to import via the UK to any other EU or EFTA member. Any attempt to prevent that would be seen as a barrier to trade within the internal market and likely to bring the Commission down on it like a ton of bricks.

The judgement can be appealed but is also likely to be read in other countries. Although, the courts are free from political intervention in most EU countries, they are generally bound to follow political imperatives when deciding which cases to accept. Having your case thrown out so clearly in one member state might be seen as a precedent and encourage courts in others to view the case somewhat sceptically, though it can never be ruled out that another court views the matter in another light. The chequered history of different interpretations of the law in England and Scotland has plenty examples of that.

If the judgement is appealed at a European level, of course, it might lead to a EU wide ruling. An appeal would have to have good grounds to overturn the initial judgement. Apple might prefer to leave the matter somewhat moot rather than have the patents invalidated at the European level as that would almost certainly count as precedent in other jurisdictions.

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Re: Hear, hear!

+1 for a judge who knows his job

-100 for the patent officer(s) granting those patents, who are clearly muppets of the first order

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Re: Hear, hear!

Patent officers and offices who and which grant invalid patents should suffer consequences, given we all suffer as a result of their negligence in granting invalid patents.

If this puts up the cost of a patent application, so that acceptable searches and evaluation can be done prior to granting a patent then so be it. Too many patents are granted, and the current system gives patent offices, through their right to grant monopolies, a license to print money.

Personally, I'd like to see patent applications provisionally accepted then published openly, with the public having a right notify examples of prior art and challenge obviousness, prior to objections being reviewed by a wider panel prior to final decision. There would have to be a fairly short time limit on the period between provisional and final acceptance, to limit the window within which other innovators are uncertain as to the status of a provisional patent.

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Re: Hear, hear!

It would have been a lot saner to declare that these are software patents and therefore de-facto invalid.

It is not good to see that software patents have managed to creep under the radar and get accepted into the UK patent system.

The fact that it was ruled that software patents are acceptable on mobile devices will probably bring a cheery smile to Apple and others, rather than the fact that some were deemed invalid - all it has done has raised the bar a little and so new court cases will be based around "but it took millions of $ and thousands of man hours to perfect this function".

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@Charlie Clark

The judge took space in the ruling to comment on parallel cases in the EU over the same patents, which all roughly came to the same conclusion, though some for different reasons. Various European courts, including our own UK ones are definitely watching each others opinions if only as a check on whether they cocked up in their own court.

Which is very bad news for Apple ;)

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Boffin

Re: Hear, hear!

Sorry to say, 'patent the bleeding obvious' has been going on for some time. I remember getting an unsolicited bid to buy a patent (applied for) for the design of a controller for playing games on mobile phones.

It basically slapped the Nintendo pad layout (X and + buttons) on a mobile phone. I wrote to the guy and asked

1. for proof that he was not infringing on design rights that Nintendo may claim

2. to explain why the Nintendo controller design could not be considered prior art

3. to explain why putting an existing controller design on an existing phone design was not obvious.

The only answer I got was basically " because its on a mobile phone".

We didn't bite.

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Re: Hear, hear!

Granted patents (in some jurisdictions) do have a period under which a challenge to validity can be made without going to the extreme of a court case. I am a bit out of the loop, but I am pretty sure the US has a 12 month period for this.

In part, this represented the somewhat different philosophy in the US-PTO vs European patent offices. The US has considered that the courts should have a major say in what is patentable and so have tended to allow claims rather generously, whereas in Europe, examiners are much stricter in what claims are allowed. [This is a reflection of the whole US philosophy of generally lower regulation and relying on court cases to determine liability.]

The US system worked quite well when the onus was on a patent holder to prove in court that someone had infringed their patent, but recently there is a tendency for courts to place the burden of proof on the defendant - i.e. to prove that you have NOT infringed! This gives the patent holder the benefit of the doubt twice over (in both granting and suing for infringement) and has led to the recent blow-out in patent filings which in turn has led to more pressure on examiners to grant patents to get them off their desk!

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Sadly

There will be an appeal, and an appeal and an appeal, until they get what they want, then there will be an appeal and an appeal and an appeal and an appeal and an appeal and an appeal and an appeal and an appeal and an appeal and an appeal and an appeal and an appeal and an appeal and an appeal.............

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Happy

Re: Hear, hear!

This is a good decision, from the UK Patents courts. British judges generally have technical training (e.g. degrees in science), and so are pretty switched on.

And good new PyLets - what you are asking for already exists. Patent applications are published 18 months after they are first filed (or 18 months after their priority date, if sooner), and in the UK you are free to file Observations to the UK Patent Office pointing out why the application should not be granted. Look here - http://www.ipo.gov.uk/pro-p-opinion-observationsemail.htm. Yo can do the same before the European Patent Office, and also something broadly similar in the US, but this time you should file it with the patent attorneys who are representing the applicant - they are then duty bound to file it themselves with the US Patent Office, and you can check online whether they've done so.

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Pint

Someone with sense dealing with patents? Suddenly I find myself searching the sky for flying pigs..

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Megaphone

I'm mostly speechless...

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Joke

I think I am going to patent the term patent trolling and describe it as...

"wasting the courts time by trying to manipulate a monopolistic style business model based on the wording of a patent for the bleeding obvious"

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Sadly I think there is a lot of prior art on that one...

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Facepalm

It was also obvious to the Egyptians in 4,000 BC

Door. Open. Hinges one side. Need a way to stop any Tut, Ramesis or Ra just wandering in.

Apparently the US has yet to catch up to them and the UK, on this occasion m'lud.

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Agree completely.

Although to be honest, it would've been nice for the judge to also find the patent examiners' work to be contemptible and ordered them to the stocks for a week.

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Apple even used to admit they don't invent anything

I remember seeing a video of jobs on youtube admitting that Apple didn't invent anything, they were lower quality than IBM when they came out, and $1000 more, and they went by a motto of something like. "Good artists copy, Great artists steal"

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Re: Apple even used to admit they don't invent anything

Which ironically, was stolen from Igor Stravinsky. "A bad composer copies. A good composer steals."

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Re: Apple even used to admit they don't invent anything

Apple have not invented anything as far as I can tell.

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Pint

The Jobs, after citing an (apocryphal) Picasso quote

to the effect that «good artists copy. great artists steal» admitted that «we have always been shameless about stealing great ideas» (http://www.youtube.com/watch?v=CW0DUg63lqU). I might add that Apple has always been equally shameless about taking other manufacturers to court when they are deemed to have come uncomfortably close to one of Apple's shameless thefts....

Henri

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Mushroom

RICO

I very much doubt it would come to anything, but it would be interesting to see the licensees of such patents go after Apple (and anyone else, for that matter) with RICO legislation as "A 'person damaged in his business or property' can sue one or more 'racketeers'" (according to Wiki). And extortion counts as a RICO racketeering activity.

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Bod

But it's Blatent Stealing, waaa! sob!

No fair, people are stealing our ideas, etc, etc, say Apple.

Oh, but hang on, most of our ideas are stolen in the first place anyway, or at least Blatently Obvious.

Jumping up and down crying wolf with the Blatent Stealing whine is not helping themselves. Well, not in Europe.

Sadly, US judges obviously are members of the church and anything Apple say is granted in their favour.

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Anonymous Coward

THANK YOU!

So you can ALL STOP banging on and on about apple being "inventive". They are not!

So your shiny shiny is a RIP of other peoples work. You knew it and tried to ignore it.

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FAIL

That's a bit over the top. They have invented a few things.

They have, however, been just as culpable in the copying of ideas as anyone else and the use of the copyright or IP infringement handle to control the market has been as good an example as any of how Apple have turned into a bigger bully-boy in the market than some of its competitors.

So any sympathy I had for Apple for the "look and feel" case against Microsoft Windows, for example, is slowly ebbing away.

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What have Apple invented?

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I agree with Grilla, what have Apple invented? Not patents bought or 'design patents' but genuine inventions. For example, inventions protected by their own patents which Apple has successfully defended in court against organizations able to afford to give them a run for their money (to rule out beating down the little guy and eliminate 'obvious' patents).

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The USPO can lick the sweat from my balls!

You can't take obvious affordances, albeit in a new medium, and patent them. It's as ridiculous as saying that, in the early days of radio equipment, buttons and sliders could be patented. They can't (or shouldn't be) because they are the only obvious solutions to the technical problems they address. The US patent system is becoming as laughable as the copyright regime and is in dire need of reform.

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Anonymous Coward

License?

Do apple actually license many of their patents? I was under the impression they use them purely to attempt to block competitors rather than profit from them?

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Re: License?

I don't think they do and they run a walled garden and wont release any real info on how to interface with their devices...even down to the checksum algorithms used to encode data on the iPod which stops third party apps from managing them.

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Devil

When patents trolls have the misfortune

of stumbling on a judge with a bit of common sence, nasty things can happen to your list of fairy tale patents. He might even use his bloody battle axe.

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Pint

The patent pendulum has started back...

The madness is ending. Well, it's the beginning of the end, etc.

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Meh

Great - but more is needed....

I'm hoping for a lot more to be done in this sector though -

you are aware for instance that Apple filed for a patent that essentially describes the App Store? It's a system and interface that manages installing and uninstalling software from a device.

http://www.google.com/patents/US20120117504?dq=touch+screen&ei=py32T_fWMcqO8gPqm_W5Bw

If this gets granted - then essentially any other OS manufacturer will infringe by allowing the user to install and remove applications.

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Alien

How, in a sane world, can a patent be granted to an application like that in the link above ?

If I compose an A4 sheet describing the steps that need to be taken in order, say, to land an human on a asteroid and begin mining operations there and include a few sketches of the process, does that mean that NASA or ESA or Roscosmos or the Chinese National Space Administration have to start paying me if they actually implement such a procedure ? NASA has plans to put the James Webb telescope in a Lagrange 2 orbit (where the Wilkinson Microwave Anisotropy Probe, Herschel Space Observatory, and Planck space observatory are presently and the Chang'e 2 was previously located) ; if the space agencies responsible have failed to file a patent describing how one gets there and what (not) on Earth one does afterwards, can I file and then make them pay licence fees or some such ? Isn't this carrying the concept of «intellectual property» a tad too far - from the (not-so) sublime to the (pretty damned) ridiculous ? But please notice that I did qualify my first query, with the adverbial «in a sane world»....

Henri

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Re: Great - but more is needed....

Unless they are significantly more specific (and maybe even if they are), there is prior art - Windows XP (perhaps even Win 2k/Me) Add/Remove Programs in Control Panel....

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Anonymous Coward

The real test...

...is if my good old US of A has the common sense to do the same.

I won't hold my breathe.

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How to fix the patent process

IMHO, the number one problem with regards to patents is the patent office itself.

They fail to do any real work determine whether a patent app covers obvious issues, or even in a number of cases to see if it conflicts with prior art. The idea that the entity responsible for issuing a patent is not also responsible for its enforcement is ludicrous.

The solution is to force the PO to pay 1/2 of the attorney costs of the winner if a patent is invalidated. The one who owns that patent should pay the other half. If a patent is upheld, the loser should pay the full attorney costs to the winner. After the first loss, the patent office would go back and fix their processes to do a better evaluation. It would also make people think twice about contesting a patent in the first place.

Another fix: change patents to cover only physical devices. The business process patents were absolute fiascos and most ( all? ) software patents are pretty obvious solutions to problems.

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Re: How to fix the patent process

In fairness, they do do some checking, but the field is getting so vast it's becoming very impractical - particularly with patent attorneys using ever more convoluted diagrams, terminology and claims lists to write up the patent in such a way as to be as broad as possible, and also to pass by the notice of competitors. I've had one patent rejected due to prior art being found by the PO that we couldn't find in our searches prior to submission.

Another fix would be to stop having targets for processing of patents. Obviously the input queue will pile up, so maybe make it public and then "interested parties" could submit prior art to each submission. You'd probably spawn a new industry of folk being employed to shoot down competitors innovations, which would have a side effect of reducing the input queue and the submissions that do get to be examined would of a higher quality of innovation.

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From the article: "Strategically Apple now needs to re-assess the worth of pursuing patent infringement claims across Europe," Scanlon said. "Apple might conclude that it would be better to extract a lower licensing fee from some of their competitors rather than risk further findings that their technology falls short of the patentable standards."

"Only demand small amounts of money with menaces at a time, so you're not worth the bother of taking to court" hardly sounds like good legal advice.

Apple must be well on their way to a Grepe v Loam order by now.

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Re: How to fix the patent process

"The solution is to force the PO to pay 1/2 of the attorney costs of the winner if a patent is invalidated."

No it bleedin' well isn't! The PO isn't some private company. Those costs would be paid by taxpayers, not by lazy (or more likely overworked) examiners, so you haven't provided any incentive for them to do a better job.

The solution might be something that makes it unattractive to try to patent obvious stuff, without putting off real inventors who have an idea that is "reasonable, but not (as it turns out) patentable". (Suggestion: a large deposit enclosed with your application that you might not get back if the examiner decided you were taking the piss.)

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Re: How to fix the patent process

There should be no need to "make it unattractive" to patent anything.

The job of the Patent Office is not to grant patents, it is to control whether or not a patent can be granted. To do so, it has one control and one control only - prior art.

Given that the Patent Office is no longer controlling prior art and has resorted to granting patents willy-nilly (possibly in exchange for cashbacks or undeclared "bonuses"), it has clearly ceased to fulfill its primary function and must be dissolved.

A new body should be set up and a new mandate implemented for managing patent application. Personally, I would prefer that no one from the previous organization be included in the new one. Blindingly obviously, the new mandate must be official, publicly sanctioned and relentlessly enforced. Legally, there should be a "grace period" while ALL existing patents are re-examined and their validity controlled by the new mandate.

Hopefully, it will result in a massive dumping of all vaguely-worded, non-reproducible or otherwise incomprehensible patents that have stuffed the system, as well as the immediate invalidation of all patents that offer no actual method of implementation other than a drawing made on the back of a handkerchief on a restaurant table.

That done, we will once again, as a civilization, be able to progress with things that are truly useful and innovative, and not just a useless encyclopaedia of every single technical tidbit some busybody has been able to throw on a paper before anyone else did.

A patent should be granted exclusively for something that improves human technology - i.e. that improves the available technology for ALL HUMANKIND - and is fully described to be completely reproducible. Anything else is useless and should be discarded.

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For those never seen screen unlock on htc

Here is htc unlock ring in action

https://www.youtube.com/watch?v=m96c8-gOLtU&feature=youtube_gdata_player

Apple lawyers actually sued this process saying it resembles slide to unlock.

Do you understand why people got shocked now? It has nothing to do with appl nor others. Even the unlock process is different with added feature (direct access) phone, mail etc.

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the sliders controversy: do not pee on Apple idias!

It follows that quite a few people on the Planet have been infringing on the Apple's Genuine and Innovative Slider's idea by sliding our pants zippers before doing our natural thing. This makes it more aggravating, as if the said patent is 24/7 being literally pissed on.

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A big step in the right direction.

Now patent trolls should pay incrementally huge penalties for wasting everybody's time and money with frivolous cases and fake patents filings by the hundreds.

Also patent offices should reevaluate their roles and responsabilities to limit BS 'patents'.

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