back to article US patent office prepares to kill off Apple's bounce-back patent

The US Patent Office (USPTO) appears to have provisionally invalidated one of the major patents that Apple was using against Samsung... And it's possible that large parts of the case will go “kablooie” as a result. Given that it's not Friday afternoon yet, everyone will remember that the Cupertinians were most insistent that …

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  1. Dave 150
    Thumb Up

    Ouch!

    1. Bob Vistakin
      WTF?

      Florian Mueller is to law what Jimmy Saville is to child welfare

      WTF do idle journalists keep regurgitating what he spoonfeeds them?

  2. Anonymous Coward
    Anonymous Coward

    You at the back, Samsung, stop giggling

  3. Anonymous Coward
    Headmaster

    Missing info in the article

    One of the two reasons the patent was tentativivelly invalidated was because of a prior Apple patent (submitted prior, but granted after this one)

    1. Anonymous Coward
      Anonymous Coward

      Re: Missing info in the article

      Which Apple patent?

      The only patent mentioned is WO 03/081458 which belongs to somebody called Luigi Lira.

      1. chr0m4t1c

        Re: Missing info in the article

        The linked-to article notes that the patent may be invalidated because of that one (Lira) and U.S. Patent No. 7,786,975 (Ording), which belongs to Apple.

        I really have no idea what the legal position is when you have a patent on something and then try to patent something obvious that derives from that. Other than very messy, that is.

  4. hplasm Silver badge
    Happy

    Hahaha

    Also, Ha!

  5. Anonymous Coward
    Anonymous Coward

    So far we have the following reasons for why the Samsung vs Apple trial was a sham

    1/ The head juror has a conflict of interest with Segate that he failed to delare.

    2/ The head juror mis-interpreted the laws on prior-art for his "eureka moment"

    3/ Many of the patents Apple had weren't vaild anyway, but were used by the jury as part of their decision making process.

    I'm sure there are many more, anyone else want to expand the list

    1. Anonymous Coward
      Anonymous Coward

      Re: So far we have the following reasons for why the Samsung vs Apple trial was a sham

      I never understand down votes when a post contains facts.. but there you go.

      You missed one - the jury chose to ignore prior art on all aspects of their judgements due to the odd interpretation you mentioned in point 2. I suppose its sort of related to point 3 but its an important point to make.

      1. vic 4

        Re: So far we have the following reasons for why the Samsung vs Apple trial was a sham

        Another. They were not allowed to use essential evidence/witnesses to defend themselves or bring up topics when questioning witnesses.

        1. Anonymous Coward
          Anonymous Coward

          Re: So far we have the following reasons for why the Samsung vs Apple trial was a sham

          You mean the ones that Samsung forgot about and then tried to file late? Gee, whose fault is that one?

          1. vic 4
            Thumb Down

            Re: So far we have the following reasons for why the Samsung vs Apple trial was a sham

            No the ones that they couldn't get through as Apple decided near the closing date to complain about samsung not backing up their email which would have had a huge negative affect. They spent so much time mitigating that issue they failed to file them, baring in mind apple were also slipping in other stuff right at the last minute.

            Now, given that Apple also turned out to be guilty of not archiving emails, something that was not found out until afterwards thereby cancelling it out I think it's fairly reasonable to assume that was intentional, add from their point a good move. Then when you throw in the fact Apple where allowed to files numerous things late at various times and Samsung were always refused many observers would get an impression of bias.

            Of course, the fact that a jury managed to digest a 100+ page legalese document AND answer 900 questions in such a small space of time that the judge was amazed and you still think it was a fair trial?

      2. Vic

        Re: So far we have the following reasons for why the Samsung vs Apple trial was a sham

        > the jury chose to ignore prior art on all aspects of their judgements

        This is because the jurr foreman apparently told the rest of the jusry that he knew the law, and they believed him. And his definitive statement - that prior art should not be considered so unless the code can run on the exact same platform - is abject nonsense; it is not self-consistent.

        the foreman should not have made any of these claims, of course; he had explicitly promised not to. And this will likely worry Apple greatly; any *legitimate* win they might have had, over and above the nonsense stuff has a good chance of being thrown out because of this man's actions.

        Vic.

    2. Anonymous Coward
      Anonymous Coward

      Re: So far we have the following reasons for why the Samsung vs Apple trial was a sham

      I think another reason is:

      The judge failed to explain to the jury that they have to ignore functional features when assessing infringement of a "design patent" (which in other countries is called a "registered design"). So, if rounded corners serve a function (such as to prevent injury) then you must ignore them when assessing infringement.

    3. Vic

      Re: So far we have the following reasons for why the Samsung vs Apple trial was a sham

      > I'm sure there are many more, anyone else want to expand the list

      4/ The jury found Samsung non-infringing on some issues, then awarded damages against them for that infringement anyway.

      Vic.

  6. g e
    Go

    Ooops

    Perhaps the fruit-mongers have finally drawn far too much attention to themselves and are getting their filings reexamined at last...

  7. Anonymous Coward
    Anonymous Coward

    This should never have been a problem

    The system is screwed up. No court should be able to decide to ban a product on the assumption that a patent is valid. There should have to be a thorough examination of the patent first and have it declared legally valid before the holder is allowed to bring cases against alleged infringers.

    1. Phil O'Sophical Silver badge
      Stop

      Re: This should never have been a problem

      > the assumption that a patent is valid

      It's not an assumption. If the patent office granted the patent then the patent is, by definition valid. If a court can't trust the validity of a patent, and feels it;'s necessary to re-examine it before passing judgement based on it, then the patent office is broken (which it is, we know).

      The solution here isn't to change the system, it's to fix the patent office.

      1. frank ly Silver badge

        @Phil Re: This should never have been a problem

        The patent is part of the evidence of the case brought against the defendant. The defendant surely has the right to question and attempt to disprove the truth or validity of any evidence against them? No?

        In a criminal case (notionally far more serious than commercial actions) the defendant can have evidence rejected if it was obtained using faulty procedures (e.g statements made to police officers in the back of a police car with no legal representative present).

        So in a commercial case, why shouldn't the defendant be able to question the validity of a patent?

        1. Phil O'Sophical Silver badge

          Re: @Phil This should never have been a problem

          > why shouldn't the defendant be able to question the validity of a patent?

          Oh, I don't dispute that a defendant should be able to question the validity of the patent, I just don't think that the court should _automatically_ start by reconsidering if the patent is valid, which is what the original poster seemed to be suggesting. That will just make the lawyers richer. A patent infringement case need not hinge on whether the patent is valid.

        2. JaitcH
          WTF?

          Re: @Phil This should never have been a problem

          Criminal and civil law are hardly comparable, the standard of evidence in the former is far, far higher.

      2. Marshalltown
        Trollface

        Banning...

        ... and invalidating software patents would definitely be a start. Eliminating patents altogether might not hurt either. Treat what you would once have patented as a trade secret. That would allow anyone trying to decide what hardware to buy or software to use to decide strictly by cost and features, which would be a real shot in the arm for the industry. Competition would increase rather than waster time and treasure battling over patents. More importantly, it would require patent trolls to get a real job.

        1. bean520
          FAIL

          Re: Banning...

          "Eliminating patents altogether might not hurt either"

          Yes, lets have this nonsense about protecting actual inventions from being copied. After all, everyone is too trustworthy to reverse-engineer stuff and build almost like-for-like clones. Arent they? oh...

          That said, software patents do go too far. What is a piece of programming besides a complex mathematical formula?

        2. Phil O'Sophical Silver badge
          FAIL

          Re: Banning...

          > Treat what you would once have patented as a trade secret

          It was precisely because that didn't work that the patent system was created.

          1. Anonymous Coward
            Anonymous Coward

            Re: Banning...

            "> Treat what you would once have patented as a trade secret

            It was precisely because that didn't work that the patent system was created."

            No. The patent system was invented as a fund-raising device for the Crown. The Crown may be gone from the US system but the motivation hasn't really changed.

            The whole idea of patents is mediaeval and absurd.

      3. asdf Silver badge
        FAIL

        Re: This should never have been a problem

        >The solution here isn't to change the system, it's to fix the patent office.

        So let me get this straight you want the politicians to spend more money that they work hard to steal from the people to fix it so the patent office brings in even less revenue for them to spend? Yeah good luck with that one. Much like oil and minerals the patent office is one of the few revenue generating parts of the government and as such politicians tend to take a very hands off approach (thus oil and minerals hiring hookers and not watching BP in the gulf).

    2. Anonymous Coward
      Anonymous Coward

      Re: This should never have been a problem

      This is a brilliant idea, It could even keep the US patent system alive with only minor changes.

      You can file anything you want, but when you want to start an infringment suit you have to pass a 'validaton check' first.

      You could wait until the actual infringement suit starts, or you could decide to have any filing validated at the time of filing, or you could systematically validate your filings 'on the quiet' when you seem fit.

      What would be the legal hurles ?

      I'd upvote you 50 if I could.

      Pete

  8. Anonymous Coward
    Anonymous Coward

    Yaaaaa Hooooooo!

    Hey Apple how does that pencil feel in your eye.

    Nice to know the US pat office are not a bunch of complete ass holes after all.

  9. Anonymous Coward
    Anonymous Coward

    I believe Apple is getting burned

    by that thermonuclear chain reaction they started. Cool down, Apple!

    1. James O'Brien
      Thumb Up

      Re: I believe Apple is getting burned

      And this is exactly how Fallout 1 started :P

      On a side though I do believe that the USPTO should hire monkeys to check the patents for validity instead of those that they did hire. Surely they would do a better and more through job. Hell they could even throw feces at the ones which they deem invalid and atleast we could make sense out of WHY they are.

      Finally the tides start to shit against crApple. I wonder what this will do to their stocks?

      1. James O'Brien
        FAIL

        Re: I believe Apple is getting burned

        "Finally the tides start to shit.."

        What was supposed to be shiFt. Really wish we had an edit function for the posts as well as the ability to remove them. ElReg are you listening to this one?

        Fail on myself for the typo.

        1. Drewc (Written by Reg staff) Gold badge

          Re: Re: I believe Apple is getting burned

          Edit post? We're listening and might even do something about it.

          1. Tom 38 Silver badge

            Edit post

            Please don't, not being able to edit posts prevents whole categories of posts from being made (or seen). If one can edit posts, you no longer see pedants pointing out spelling mistakes with posts containing spelling mistakes or when people make factual boobs in their posts, as they will just edit out their stupidity

            1. Anonymous Coward
              Anonymous Coward

              Re: Edit post

              Leave the old text in with strikethrough.

            2. Michael Wojcik Silver badge

              Re: Edit post

              Please don't, not being able to edit posts prevents whole categories of posts from being made (or seen).

              Indeed, one of the great charms of post-cancel[1] Usenet is that once a post had been made, it is fixed for the ages. Many a Usenet poster (myself certainly included) has posted in haste and repented at leisure. It encourages a bit of humility (and caution) among the better contributors, and lets the worse sort brand themselves with their own words. Let's not start revising away evidence of our failings.

              [1] That is, after the rise of cancelbots, and the consequent configuring of NNTP servers to ignore cancel requests.

        2. Steven Roper
          Thumb Up

          That wasn't a typo James

          It was what is known in the trade as a "Freudian slip". A very good example of one too, I might add! ;-)

  10. Big_Ted
    Trollface

    So does that mean the court has to compensate Samsung for lost sales due to the ban ?

    Oh I hope it does, plus compensation for damage to their name etc.

    They should get oh around 1.2 billion in damages from Apple.....

  11. Keep Refrigerated
    Mushroom

    I felt a great disturbance...

    ...as if millions of fanbois suddenly cried out in terror, and were suddenly silenced.

    Seriously though: USPTO - even a broken clock tells the right time twice a day.

  12. Anonymous Coward
    Anonymous Coward

    Flo Mu? Try Groklaw for a bit better detail

    http://www.groklaw.net/article.php?story=20121023121611827

  13. Anonymous Coward
    Anonymous Coward

    Of course...

    .... I'm sure Samsung would have put bounce-back in their apps even if Apple hadn't implemented it on the iPhone. It wasn't just an obscure UI feature until Apple realised its use as a visible way of showing users they'd reached the end of a document.

    Neg me all you want, but deep down you know Samsung don't have the creativity to come up with a feature like that.

    1. Anonymous Coward
      Anonymous Coward

      Re: Of course...

      Maybe they don't, but using the wheel example from the article, let me illustrate my view of it.

      If Ford were to be the first company to introduce cars with orange wheels, and the public were to go crazy over it, then Ford couldn't sue Toyota for making cars with orange wheels just because Toyota didn't think of colouring their wheels orange. (Keep in mind that the fact that coloured wheels are obvious is a premise from the article)

      So when Apple makes a feature that bounces back when reaching the end of something, then if it's deemed obvious, Samsung can copy that feature all they want.

      Whether or not it should be deemed obvious isn't up to me, so I'll just neglect to comment on that further.

    2. Dazed and Confused Silver badge

      Re: Of course...

      > Neg me all you want, but deep down you know Samsung don't have the creativity to come up with a feature like that.

      I'm not sure why you feel that Korean's can't innovate?

      But the whole point here is that bounce back is not an innovation. It is just mimicking real life. Anyone who has ever used a large card indexing system knows that if you pull out the draw quickly is keeps moving under its own momentum and that when it reaches the end it bounces back. That is the way the world works. Newton explains the what was going on here hundreds of years ago.

      All the so called bounce back feature is doing is mimicking this normal physical phenomenon. The long menus you have on phones etc are just a computerised implementation of a real world object which is an old as the hills. They aren't an invention and there is no innovation here, they are just a different way of building a card index. Making them bounce back is just a way of making them mimic it a little more faithfully.

      1. Def Silver badge

        Re: Of course...

        "But the whole point here is that bounce back is not an innovation. It is just mimicking real life."

        Lots of patents and designs are "just mimicking real life - or nature/physics at least". If bounce back was so obvious though, how come nobody implemented it in the 30+ years of computer user interface design prior to Apple? I mean, you'd think at least one game would have done it in their quest to make things cool. (Maybe one game did implement it - I don't recall ever seeing it though. If someone did, just disclose them as prior art...)

        1. Dazed and Confused Silver badge

          Re: Of course...

          > If bounce back was so obvious though, how come nobody implemented it

          They did,

          its called Pong

          Certainly lots of games make things bounce.

          In the same way that making a blue wheel is obvious once black wheels exist. Bouncing menus on a screen is obvious once any bouncing object exists on a screen.

          I'm not saying it isn't a neat feature, its just not innovative.

          > Lots of patents and designs are "just mimicking real life - or nature/physics at least".

          That is one of the problems with software patents, people think that they can patent just about anything, when they shouldn't be allowed to. Using computers to mimic real life is as old as the computer industry, mimicking it is slightly different ways shouldn't be allowed to count.

          1. Def Silver badge
            FAIL

            @Dazed and Confused

            Yes yes, well done. Lots of games have things that bounce. Now think about what we were talking about, which was user interface items bouncing back when the user attempts to scroll beyond the end of the scrollable area, and now try to think of a game where *that* happens. Try not to get distracted with other things bouncing...

            1. Dazed and Confused Silver badge

              Re: @Dazed and Confused

              But my whole point was that if you throw things at the end stop they bounce. That is what happens. You can not claim that this is an invention. Making this happen to a menu instead of a ball is immaterial. Things bounce. You can't invent it.

              1. Def Silver badge

                Re: @Dazed and Confused

                Yes, bouncing in the real world is a result of simple physics. I'm not disputing that. Applying that same action to objects in games, for example, isn't innovative either, it's merely copying real world behaviour. However, scrollable lists that also mimic that behaviour isn't as obvious as it seems - scrollable lists don't exist in nature, so there's nothing to copy. You can claim that applying real world mechanics to artificial constructs is obvious, and in a lot of instances I'll (probably) agree, as will history with evidence that such things have been done almost as soon as the construct was invented. But if making lists bounce back is such an obvious idea, why wasn't it done sooner?

                1. Dazed and Confused Silver badge

                  Re: @Dazed and Confused

                  Please go back and read my first posting on the subject.

                  > Anyone who has ever used a large card indexing system knows that if you pull out the draw quickly is keeps moving under its own momentum and that when it reaches the end it bounces back.

                  I would argue that scrollable lists are just a computerised implementation of a common storage problem. I'll grant that the Apple implementation is nicely polished, their stuff so often is. But I still feel it is just an implementation of something that has existed for many years in the physical world.

                  As to why no one has done it before, I don't know. I certainly haven't. I spent some years writing GUI SW. I implemented a couple of examples of oversized scrollable drop down menus in Motif back in the early nineties, but I had sufficient real estate to tackle the problem in another way. But I was aware that I was just mimicking something I was used to working with in the real world. GUI's work best, IMHO, when they do. When things just work the way people expect them too, they use them without thought. I still don't think that it counts as inventing things.

          2. Def Silver badge

            Re: Of course...

            "Bouncing menus on a screen is obvious once any bouncing object exists on a screen."

            "...it is a rare mind indeed that can render the hitherto non-existent blindingly obvious. The cry 'I could have thought of that' is a very popular and misleading one, for the fact is that they didn't..." - Dirk Gently.

            That fact that it wasn't obvious, is my point. If it was that obvious it would have been done before. My point about games was that games would have been the ideal candidate to have done this first because they, traditionally, were one of the few genres of application that freely implemented their own UI engines *all the time*, and had a refresh rate high enough to implement proper animation of elements.

            I still don't recall any games having implemented this before.

      2. Michael Wojcik Silver badge

        Re: Of course...

        I'm not sure why you feel that Korean's can't innovate?

        For the same reason he's posting as AC - he's an idiot or a troll. There's little to be gained by arguing with that sort.

        All the so called bounce back feature is doing is mimicking this normal physical phenomenon.

        And I'll note that modeling GUI effects using simple simulations of mechanical processes is a well-known and longstanding approach. I'm pretty sure that the first version of the CWM window manager for X11 (circa 1988), for example, did its window layout (which was non-overlapping) by modeling a 2D array of springs. The UWM window manager, among others, used the term "gravity" for its window-positioning bias settings; while it didn't actually implement it with a gravitational model (ie, it didn't bother accelerating windows toward a given portion of the screen, just moved them as far as possible in a single calculation), the conceptual model was based on a physical effect. I would not be at all surprised to find "bounce-back" scrolling in some obscure X11 widget set or other less-well-known GUI.

        1. Dazed and Confused Silver badge

          Re: Of course...

          When I first started writing X code (back at X10.4) I wrote a toy to just make users windows bounce around all over their screens, xbounce was a little boring after a while, the windows only bounced when they got to the bottom of the screen, I wanted windows to bounce off other windows too :-)

          Incidentally xbounce (and my toy) would also both bounce drop down and pop up menus, since they are both implemented as discreet windows.

  14. Tom 35 Silver badge

    Now

    How about slide to unlock...

    1. Interested Party
      Holmes

      Re: Now

      Slide to unlock prior art: http://www.efanlock.com/files/Door_Bolt.jpg

  15. Big_Ted
    Devil

    http://www.bbc.co.uk/news/business/market_data/shares/4/106520/one_month.stm

    Apple stock has dropped 2.57% since the announcement of the ipad mini etc.

    Looks like news of this plus that is not enough for the shareholders to be happy.....

    That's 9% down in the pat month........

    Is this the end for Apple ? ? ? ?

    1. Geoff Campbell
      Linux

      No, not the end, or at least not necessarily.

      But certainly the start of a new phase. One in which they are facing a lot more, and better organised, competition. How they respond will decide the future of the company.

      I'm not sure I'd be investing in Apple shares any time soon. I did have a small chortle at a friend who recently exclaimed "Apple down to $632! Time to buy!". Fortunately for him, he didn't have the courage of his convictions.

      GJC

  16. Al Jones

    Who says you can't patent the wheel?

    It's been done!

    http://www.newscientist.com/article/dn965-wheel-patented-in-australia.html

    1. Will Godfrey Silver badge
      Happy

      Yes but...

      That was in Australia.

      Also the patentee had his fingers crossed.

      1. Tim Worstal

        Re: Yes but...

        It's also a good way of showing what really happens. Many patents aren't really examined for the inventive or new steps. It's only when someone tries to challenge them that they are.

        With the wheel, everyone knows that the guy's not going to try to enforce the patent because it's so damn obvious that it will fail both tests. So let him keep it and ignore it: don't bother to spend the money to test it.

        Unfortunately, some (unknown) number of these tens of thousands of tech patents will also fail such a test. But who has the money to go fight the court case to test them?

        As it happens, in this one particular case, Samsung. But what about the other tens of thousands of them?

        The reason the testing isn't done in the first place is because it costs lots of money. And the majority of patents are never referred to after they've been filed anyway.

        This might not be the best way to run the system but it is the way it really works. Very loose grants of patents then rely on people challenging them to weed out the bad ones.

  17. Martin 50
    Joke

    This is the first time somebody has explained the patent system to me in these terms, I can now see why it's a mess but also why it's not fixable. And I think a point above about getting the Patent Office to make a ruling before a high court judge uses it to base a multi-billion dollar case on, sounds sensible.

    So I'm picturing a patent, in a box, being neither a valid patent nor an invalid patent, until said box is opened... Wasn't Einstein a Patent clerk?...

    1. Rob Carriere

      Yes, he was. And he didn't much fancy quantum uncertainty...

  18. Malcolm Weir Silver badge

    Claiming Samsung wouldn't have thought up the bounce back behavior...

    ... ignores the fact that:

    a) Most of the software on the Samsung devices comes from a company called Google, who most people recognize as being _capable_ of great innovation (even if views differ as to whether they have actually been innovative in any particular situation), and

    b) the Apple products run "iOS" which is heavily based on BSD Unix which is a (perfectly legal) copy of Bell Lab's Unix.

    Copying is the norm, and this is the basis of innovation, not some cockeyed problem. Either Apple accepts that everything about their products is fundamentally based on copied work, or Apple needs to quit whining when other people do what they have always done!

  19. Mark .

    Agree with the article, though a small point as an off-topic aside

    "as we arguably are with the move from featurephones to smartphones."

    There is no meaninful difference between "feature" and "smart" phones. The difference is just one of marketing. Once upon a time, a smartphone (as opposed to a "dumb" one) was one that did apps, Internet and ran an OS - basically a computer that was a phone. Around 2004, even bog standard phones did this, but instead the term "feature" phone was introduced for the lower end phones, I guess to differentiate the more expensive phones. Apple further confuse things by introducing a dumb phone that couldn't even run apps, and marketing it as a smartphone.

    It's not that we're really now moving to smartphones, rather companies are just using "smartphone" more often as a marketing label, as that's where the hype is.

    A small point - but it amazes me how commonly people seem to think a feature phone is objectively different to a smartphone, when it's entirely a matter of marketing terms.

    (Now that there smart TVs, in a few years, are we going to have nonsense like "feature TVs"?)

  20. JaitcH
    Thumb Up

    Why the pregnant silence from ...

    the Cupertinians?

    You would have thought the PR department would have been working overtime.

    Possibly Judge Koh had a premonition, or a tip, that things might change and she protected proceedings by adjourning until December. Guess Samsung has deservedly been given two big Christmas presents - the delayed trial proceedings allowing them to score the Christmas market and this patent determination.

    New trial anyone?

  21. Dazed and Confused Silver badge
    FAIL

    Re: cannot gain a patent on a wheel

    I wonder how long it will be before Apple sue BL for making a rectangular wheel with rounded corners?

    Innovate like an Allegro :-)

    1. Anonymous Coward
      Anonymous Coward

      Re: cannot gain a patent on a wheel

      Oh please. Did you really have to remind me of the existence of the Allegro?

      1. Callam McMillan
        FAIL

        Re: cannot gain a patent on a wheel

        Could be worse... There's always the Morris Marina ;)

        <<Fail... Because that's what the Allegro and Marina were!

  22. Will Godfrey Silver badge
    Happy

    What about the Vauxhall Nova - translates to 'Doesn't Go' in some countries

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