Apple’s Pinch-to-Zoom Patent Tentatively Ruled Invalid

| Analysis

Apple & The USPTOApple's so-called pinch-to-zoom patent has been tentatively ruled invalid by the U.S. Patent & Trademark Office (USPTO). In a first Office action, the USPTO rejected all 21 claims of Apple patent 7,844,915 ('915), one of the key patents the company successfully used in a trial earlier this year against Samsung.

First Office actions are a preliminary stage of challenging a patent, and they don't affect the enforceability of a patent. They are typically based entirely on a challenger's arguments before the patent holder has had a chance to defend the patent, and as such often result in invalidity rulings.

The Wall Street Journal reported the ruling in far more definitive language, but the reality is that the patent is under threat at this point, rather than being actually and finally invalid [Update: The Journal updated its story with information about the preliminary nature of the ruling after our story was published. - Editor]. It's still a serious issue for Apple, however, which has called the patent its most valuable patent, as noted by FOSS Patents.

In particular, claim number 8 is under challenge on two fronts, as the USPTO ruling agreed with the challenger (anonymous, but most likely ultimately tied to Samsung) that an earlier patent serves as prior art, while a combination of two other technologies makes claim 8 obvious.

Claim 8 is the most pertinent of Apple's claims in the near-term, as it served as the centerpiece of Apple's infringement suit against Samsung. In order for Apple to retain its patent, it would have to overcome both of these arguments. According to FOSS Patent's Florian Mueller, that will be a stiff hurdle for Apple.

"Even if it successfully countered the anticipation theory," he wrote, "[Apple] would then also have to establish non-obviousness over the prior art reference previously deemed to have anticipated the '915 patent."

Apple was recently denied an injunction against Samsung devices that a jury found infringed on patent '915 and two other patents. Samsung filed documents with the court on Wednesday arguing that this first Office action means that the company is entitled to a new trial.

On December 10th, the USPTO issued another first Office action on the so-called "Steve Jobs Patent," another one of the three patents Samsung was found to have infringed. That leaves but one of those patents that remains unchallenged.

As noted above, the first Office actions do not make a patent unenforceable due to the procedural nature of the ruling. The full USPTO review process will have to be completed before anything could happen to the patent.

If either patent is officially invalidated at the end of that process, it will represent a serious blow against Apple's efforts to protect iOS, iPhone, and iPad against what the company has claimed is the wholesale theft by Android and Google's Android OEMs of the company's inventions.

In short, those who believe that Apple's R&D efforts and inventions deserve protection should be concerned. On the other hand, those who think that Apple is nothing more than a wannabe bully that prefers litigation to innovation shouldn't necessarily start celebrating just yet.

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16 Comments Leave Your Own

Bosco (Brad Hutchings)

On the other hand, those who think that Apple is nothing more than a wannabe bully that prefers litigation to innovation shouldn’t necessarily start celebrating just yet.

Perhaps not. But it’s never to early for those who pushed and regurgitated the “Android is stolen” narrative to start apologizing.

Bryan Chaffin

Ummmm…says who?

1.) This ruling is just the beginning of this process.

But the more important issue is:

2.) Ethically and morally—as opposed to legally—whether or not Apple has the proper patents or right patents to keep others from copying the technologies, techniques, concepts, and ideas that they developed to bring the first multitouch smartphone to market is separate from whether or not Android was ripped off from iOS.

That’s a doozy of a sentence. GL parsing it. smile

Conversely, it’s a separate issue to debate the morality or usefulness of patents as opposed to their legality.  In other words, even if Apple retains these patents and its victory over Samsung, that won’t effect the argument of those who believe that all patents are bad or that all software patents are bad.

I still think it’s sad that so many Apple haters are OK with that. While I know that you are not an Apple hater, Brad, I remain mystified that you are in the camp of those who think it’s OK.

There’s only one camp that should be apologizing in my book, and that’s the secondhanders that ripped off iOS so gibly and gleefully, and with so much entitlement.

JonGl

“Atlas Shrugged” deja vu.

“We can’t compete without stealing your great ideas, so we are going to do it, and use the law to do it. And our own Bosc-off is in favor. Are we surprised?

JonGl

As a side note, when are you guys going to bring back the ability for us to edit our own posts? grin

Bosco (Brad Hutchings)

Bryan, the problem with the whole “they copied us” narrative is that they didn’t. See the original Droid Does commercial from 3 years ago. Google and it’s partners made a better phone and a better ecosystem with a better, much more open, fundamental design philosophy. At any rate, I think that’s what really got Apple’s feathers ruffled—the rejection of the control freak approach to business. And frankly, I think the patents were critical to the building of their prison garden, which makes them the absolute worst kind of corporate welfare imaginable. The state gave Apple the rebar and the cement to construct its own private Alcatraz.

dobermann bob

I’m still wondering why we keep calling it “pinch-to-zoom” in the first place since pinching doesn’t zoom.

jfbiii

Someone doesn’t understand what welfare is. Or theft. Or prison. Or “better.” Or “copied.”

What has Apple’ feathers ruffled is that not only did Schmidt take insider knowledge of what Apple was doing with its phone and use it to change the direction of Google’s mobile OS development to copy Apple, they then licensed the resulting OS to “partners” that BLATANTLY copied the physical design of Apple’s products. Down the chargers and packaging.

You can say “they didn’t” copy all you want, but it doesn’t make it true. Smart phones today look like the iPhone because Apple reinvented what a smart phone should be and how it should behave and how it should look.

Aaron Moore

“...even if Apple retains these patents and its victory over Samsung, that won’t effect the argument of those who believe that all patents are bad or that all software patents are bad.”

The big argument against patents currently is not that all patents are bad or that all software patents are bad.  Design patents are the issue and the area where Apple has filed and received a huge portion that are being used for litigation. 

Getting a patent for a flat square screen with slightly rounded corners seems ridiculous yet Apple has it and won injuctions in Germany with that patent.  The system is broken and everyone without blinders can see that fact.  That is why lawmakers, corporations, individuals, and goverments are all struggling to reform patent law and remove patents that are ridiculous, obvious, and have prior art.

CRM

I saw Captain Picard using a flat square screen with slightly rounded corners over 20 years ago.  Apple didn’t invent anything in that regard.

Just search for “Picard” and “tablet” in Google image Search.

Michael

@CRM: A movie prop is not an invention. Designing and building a product that actually works is.

Michael

@Bosco: “the problem with the whole “they copied us” narrative is that they didn’t. See the original Droid Does commercial from 3 years ago.”

From 3 years ago! Really? The iPhone was introduced almost 6 years ago. That’s quite a long time in the mobile space. The first Android device wasn’t released until a full 18 months after the iPhone’s introduction. Before the iPhone there were Android prototypes seen and used, but they looked nothing like the iPhone - Android was basically an alternative to Blackberry and WinMo.

What ruffled Apple’s feathers was that Google decided to throw out that original interface and rework it to look and act more like the iPhone.

And maybe you don’t remember when that first Android device was released? It was an extremely crappy touch-based experienced. It was obviously bolted on to the OS after the fact. “Touch” only worked in some areas, you still had to use the “pointer” to access some UI elements. Multi-touch didn’t work at all.


“Google and it’s partners made a better phone and a better ecosystem with a better, much more open, fundamental design philosophy”

A better phone? That’s completely subjective.

A better ecosystem? There was no ecosystem and barely is today.

A better design philosophy? You mean to be on as many units as possible to push ads? That’s a great philosophy. Google doesn’t have a design philosophy. Android isn’t open to be “better”, it’s open so Google can shove its ads into more faces.

The entire point of Google buying and developing Android was because of Microsoft. They didn’t want Microsoft to rule the mobile landscape as they did on the desktop. Mobile devices aren’t subjected to the same rules as on the desktop. If Microsoft was to become huge in mobile, they could potentially lock out others. At the time Microsoft was in a position to become a big player in mobile and Google was afraid that their search could potentially left behind.

Then Apple came along and drew the line. Anything that remained the same from that point on would eventually die off. And guess what happened? They ALL just about did. Google was the quickest to react, but still took 18 months. Google succeeded because everyone else was too slow to reenter the market. Microsoft’s promise of a better WinMo with version 6.5 fell on its face. It was only then that OEMs had no choice but to adopt Android, and it began to take off. And of course it was going to eventually ship on more devices than iOS - that was inevitable.

RonMacGuy

Hi Michael, all good comments.  But you must realize that Bosco lives in what we like to call ‘Bosco Fantasy World’.  Where Apple is failing because even though they are selling every iPhone they are able to build as quickly as they build them they are losing market share (not profit market share, where they own 90%+ of the smart phone profits, but volume market share, as if that really matters).  Where even though they are selling every iPad that they can build, there is somewhere this ‘rejection of the control freak approach to business’ even though he really can’t prove it.  One out of every two smart phones sold in October was an iPhone, even with dozens of ‘better’ android phones out there.  Where a reference to an android commercial 3 years ago somehow proves that google and samsung did not copy Apple.  Where the iPhone is 10% US market share by the end of 2011 (try again).  Where the iPad is ‘declining and mostly irrelevant’.  Where the masses hate Apple with a passion.  And where you can say anything you want to and not have to have the courage or character to stand behind what you say.

We all tend to avoid Bosco Fantasy World, even as the Great and Powerful Bosco attempts to draw people there with promises of a wonderful android ecosystem that does a lot of worthless stuff but is worth the malware, viruses, and fragmentation issues.  Most people see the truth about the man behind the curtain, and I’m glad you also see it.

grin

Bosco (Brad Hutchings)

Michael, What the Cowardly Lyin’ doesn’t tell you is the big things I’ve been right about that this community has gotten totally wrong. You write:

Google doesn’t have a design philosophy. Android isn’t open to be “better”, it’s open so Google can shove its ads into more faces.

One of the things this community got really wrong (because it does not understand Google’s relationship with open source) was Google’s toleration of Kindle Fire. I told you all from the beginning that they didn’t care. Yet there was all sorts of speculation that Google would change the license or do all manner of Draconian things. Google would have to become just like Apple. Nope, they competed, and then Amazon had to up its game. And the tablet space has never been richer, even forcing Apple’s hand in the 7” space.

At its core, Google understands that openness and playing fairly with others in the sandbox it built is what makes it possible for the ecosystem to dominate, and for Google to make money in it. I think there’s evidence that Google is more than a utilitarian open player—that open models are actually an important element of its brand. But we can have that debate another time.

On Apple Maps… One of the things I hear Apple partisans argue is that Apple Maps has contact integration and Google maps doesn’t. Therefore, Apple maps is better, ergo Apple > Google. Things are this way because Apple doesn’t allow contacts integration, not because Google wouldn’t want to deliver this feature.

Now let’s say Apple ported its maps to Android. No serious person with any knowledge of how Android works could reasonably suggest that Google would somehow block Apple from accessing contacts through appropriate APIs and with appropriate user permissions. That’s not how Google does things. Much like with Kindle, I don’t think Google would be terribly offended, let alone actually care. Customers definitely benefit more from the unrestrained competition than from Apple’s managed approach, which had previously cast a cloud of doubt on whether Google could even get its iOS maps app “approved”.

So yeah, Google really does have a design that’s better for its customers in the “open” part. I’d argue it also has a moral high ground as well.

Mom

Hi Michael—

Honey,

I saw that you finished your homework—good job, you get two hours of play time on your Ipad, like we agreed.
Clean up your room—we don’t live in a zoo—do we? Your Underoo’s belong in the hamper—not on your floor ; )

PS: No drinking water before bed—I’m tired of changing your sheets.

Love,
Mom

Ahmed Sayed

God, you donth know how happy I am with this news. Guess they did really steal. Apple has never been shameless about stealing. Words of gold.

RonMacGuy

Big things, Bosco?  Such as?

The one or two ‘big things’ (in your mind) that you’ve been right on are so dwarfed by the enormity of the many many ignorant blunders that you’ve made it isn’t funny.  The really sad thing that you still don’t see is that you could come across as somewhat intelligent if you didn’t let your resentment of Apple cloud your judgement so much.  You still say things like ‘the rejection of the control freak approach to business’ yet can’t demonstrate where any real rejection is.  Where is the rejection when the iPhone 5 alone already has Apple winning nearly 27% of the worldwide LTE market with only 3 months of sales?  7” android tablets are so much cheaper than the iPad Mini, yet Apple is bumping orders to 10M-12M this quarter, and will sell every one of them.  Where’s the rejection?  Your resentment of Apple makes you think/wish/hope that they will start to fail, so you make predictions about the stock price never getting above $200 or some crazy number (sorry, not tracking that one) and that people should have sold their stock long ago.  Wow.  You make predictions about iPhone market share, and are totally wrong.  You make predictions about iPad being ‘declining and mostly irrelevant’ and are completely wrong.  You make predictions about Ive leaving Apple and Cook stepping down as CEO and are completely wrong.  So with your entire foundation of criticism of Apple being totally and completely wrong, you wonder why we simply just laugh at you and don’t give you credit for the little things you guess correctly?  Really?  So, continue to guess wrong about Apple’s success, and we’ll continue to laugh, and you’ll continue to hide and wish you didn’t say the things that you say, or simply wish people like RonMacGuy would stop tracking them.

Merry Christmas everyone!!

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