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Two important Apple multitouch patents face anonymous USPTO challenges

post #1 of 27
Thread Starter 
Two of Apple's most important multitouch patents, an overscroll or "rubber-banding" patent and a touch heuristics patent, are being challenged by separate ex parte reexamination requests.

The high-profile anonymous reexamination requests against Apple, discovered last week by patent litigator Scott Daniels of the WHDA Reexamination Alert blog (via FOSS Patents), take aim at U.S. Patent No. 7,469,381 for list scrolling and U.S. Patent No. 7,479,949 for touchscreen heuristics.

Both of the patents in question are integral to the unique operation of iOS devices and were used in a number of infringement suits against mobile phone makers using Google's Android mobile operating system. The pair already survived previous ex parte reexaminations while an inter partes request was denied by the USPTO in 2008.

There could be a number of interested parties behind the ex parte requests, including main-contender Google which would benefit greatly if the patents were nullified by previous art.

The '381 patent covers scrolling behaviors that align text and graphics to the top of the display automatically and bounces or "rubber-bands" the page when a user scrolls to the end of a document or list. This property is at the heart of the iOS UI, allowing the operating system to respond to user input in a fluid and natural manner.

Apple's '949 patent covering touchscreen heuristics can be viewed as one of the most important properties leveraged in iOS. With Steve Jobs attributed fist on the list of inventors, the patent covers how multi-point input is computed and processed, making it integral to all iOS devices.

The current request for reexamination references the following prior art against Apple's patents:

'381 rubber-banding patent

According to the request, these prior art references were not considered or cited by the examiner during prosecution or reexamination:

  • PCT Publication No. WO 03/081458 on "controlling content display", by AOL/Luigi Lira, published on October 2, 2003

  • U.S. Patent No. 7,786,975 on a "continuous scrolling list with acceleration"; the named inventors are Bas Ording, Scott Forstall, Greg Christie, Stephen O. Lemay and Imran Chaudhri

  • PCT Publication No. WO 01/029702, which later resulted in U.S. Patent No. 7,152,210 on a "device and method of browsing an image collection"; assigned to Philips (named inventors: Elise van den Hoven, Josephus Eggen); this patent application is used against claims 15, 17 and 18 in combination with the first (AOL/Lira) patent, which the request says renders those claims obvious on its own but at least in combination with this Philips patent

'949 touchscreen heuristics patent

According to the request, the first and the fourth one were not previously considered or cited during prosecution or reexamination, while the second and the third one were, but allegedly become more relevant now in light of those new references:
  • U.S. Patent Application Publication No. 2002/036618 on a "method and apparatus for detecting and interpreting path of designated position", assigned to Canon (named inventors: Masanori Wakai and Satomi Kayano)

  • U.S. Patent Application Publication No. 2006/0101354 on "gesture inputs for a portable display device", assigned to Nintendo (named inventors: Hideyuki Hashimoto and Shigetoshi Kitayama)

  • U.S. Patent Application No. 2005/0012723 on a "system and method for a portable multimedia client", assigned to Move Mobile Systems (named inventor: Matt Pallakoff)

  • U.S. Patent Application Publication No. 2003/0063073 on a "touch panel system and method for distinguishing multiple touch inputs" (assigned to a group of individual inventors; first-named inventor: Bernard O. Geaghan

FOSS Patents' Florian Mueller believes that the '381 patent has a higher likelihood of surviving the reexamination than the '949 patent in light of the prior art assertions.

"The '949 patent basically just describes gestures that are identify based on an angle of initial movement with a certain level of tolerance," Mueller writes. "I've criticized this patent repeatedly."

He notes that the Wakai patent application describes the ideal angles of direction to determine what a user intends with a certain gesture.

"At first sight, the Wakai prior art reference appears to render the '949 patent obvious, if not non-novel," Mueller said. "I don't usually make such statements on prior art since minor differences between the prior art and a challenged patent are often enough to keep a patent alive, but in this case I would really be surprised if this request didn't succeed at least against the broadest claims of the challenged patent."
post #2 of 27
Scott Forstall, listed on one of the challenge patents, works for Apple doesn't he?
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post #3 of 27

(rolleyes)

 

How can it be "high-profile" if the challenge is anonymous? And how is it possible for an anonymous challenge to be launched against a patent anyway? This does not sound kosher.


Edited by SpamSandwich - 5/29/12 at 2:52pm

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post #4 of 27
Quote:
Originally Posted by SpamSandwich View Post

(rolleyes)

 

How can it be "high-profile" if the challenge is anonymous? And how is it possible for an anonymous challenge to be launched against a patent anyway? This does not sound kosher

http://reexamcenter.com/essentials/common-questions/#a01

 

It's not unusual and in fact one of the defining differences between ex-parte and inter partes re-examination requests.

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post #5 of 27
Quote:
Originally Posted by Gatorguy View Post

http://reexamcenter.com/essentials/common-questions/#a01

 

It's not unusual and in fact one of the defining differences between ex-parte and inter partes re-examination requests.

 

The new title for the story is vindication enough.

 

Attention attorneys (especially patent attorneys):  How is an anonymous challenge to a patent possible?

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post #6 of 27
The key is this:
"The pair already survived previous ex parte reexaminations while an inter partes request was denied by the USPTO in 2008."

Given the level of re-examination and failure to succeed with previous challenges, it is EXTREMELY unlikely that the USPTO will void the patents.
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post #7 of 27
Quote:
Originally Posted by SpamSandwich View Post

 

The new title for the story is vindication enough.

 

Attention attorneys (especially patent attorneys):  How is an anonymous challenge to a patent possible?

You didn't read the link I supplied that explained it?

 

FWIW, in the same source report today are 7 other anonymous ex-parte re-exam requests. 

http://www.whda.com/blog/2012/05/anonymous-attack-on-facebooks-user-news-feed-patent-among-the-reexamination-requests-filed-the-week-of-may-21-2012/

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post #8 of 27
Quote:
Originally Posted by jragosta View Post

The key is this:
"The pair already survived previous ex parte reexaminations while an inter partes request was denied by the USPTO in 2008."
Given the level of re-examination and failure to succeed with previous challenges, it is EXTREMELY unlikely that the USPTO will void the patents.

These re-exam requests contain prior art not before seen or mentioned. Mr. Mueller seems to feel it's likely the '949 won't survive a re-examination, at least in total.. IANAL and even tho Mueller isn't either his opinion should probably be noted, particularly since it's somewhat rare for him to make that type of comment on an Apple patent.

http://www.fosspatents.com/2012/05/apples-two-most-important-multitouch.html

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post #9 of 27
Quote:
Originally Posted by jragosta View Post

The key is this:
"The pair already survived previous ex parte reexaminations while an inter partes request was denied by the USPTO in 2008."
Given the level of re-examination and failure to succeed with previous challenges, it is EXTREMELY unlikely that the USPTO will void the patents.

Which is what makes me think the real result being sought is just further delay. Justice delayed is justice denied. Google will drag its feet until Android as we know it is no longer in play--replaced by a successor. Meanwhile they will have won by using their pirated software to capture market share.
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post #10 of 27

Why isn't Foss Patents credited in the title of the story? Give credit where credit is due, FFS.

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post #11 of 27

Gee, I stopped reading after the first page and the included diagram of flow. Sorry, but the rubber banding will stay Apple's patent.

 

Mentioning a touch screen [one can assume designed for a Web Kiosk interface] won't change a damn thing.
 

Gestures once again targeting a web browser interface. Again, a futile waste of time. App heuristic vs. System-wide heueristics specifically targeting multi-touch systems that extends to pressure sentitive touch again is Apple's patent.

 

Mueller doesn't know his head from his ass on the physics and specific focus that he describes as just, ``describes gestures that are identify based on an angle of initial movement with a certain level of tolerance,'' when it goes far beyond that, but then again Mueller is now bringing this up in defense of his employer, Google.

 

He claims to have argued against it for a long time, however Apple just received the patent April 2012.

 

http://www.theverge.com/2012/4/1/2918520/court-adopts-apples-broad-interpretation-scrolling-patent-rejects-motorolas

 

The Verge ruling against Motorola and thus against GOOGLE.

 

Eat it, Mueller.

 

If you read the patent, http://assets.sbnation.com/assets/1036701/US7479949.pdf the examiner source a large array of prior art documents that go back to 1994 and upon reviewing the large patent granted it to Apple.

 

The in-depth complexity of this '949 that Mueller summarizes like a child is an insult to the science behind it's seemingly simple reality and how easy ``it just work.''


Edited by mdriftmeyer - 5/29/12 at 3:36pm
post #12 of 27
Quote:
Originally Posted by SpamSandwich View Post

Why isn't Foss Patents credited in the title of the story? Give credit where credit is due, FFS.

IMO perhaps he's no longer as trusted as a source? With his notice (offered just once and probably never to be mentioned again if he can avoid it) of being paid for his services by both Oracle and Microsoft there's more questions popping up in comments around the web and on Twitter about how honest he's being in his blog stories. Just a guess of course. Only AI editors know why he wasn't credited.

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post #13 of 27
Quote:
Originally Posted by Gatorguy View Post

IMO perhaps he's no longer as trusted as a source? With his notice (offered just once and probably never to be mentioned again if he can avoid it) of being paid for his services by both Oracle and Microsoft there's more questions popping up in comments around the web and on Twitter about how honest he's being in his blog stories. Just a guess of course. Only AI editors know why he wasn't credited.

 

I thought he was the source of the story? If you directly swipe content or quote portions of it verbatim (even close to word for word), clearly source attribution is a must.

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post #14 of 27
Quote:
Originally Posted by SpamSandwich View Post

 

I thought he was the source of the story? If you directly swipe content or quote portions of it verbatim (even close to word for word), clearly source attribution is a must.

I agree that AI's story was sourced from FOSSPatents blog. To be fair AI does mention FossPatents in parentheses in the first sentence.

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post #15 of 27
Quote:
Originally Posted by Gatorguy View Post

I agree that AI's story was sourced from FOSSPatents blog. To be fair AI does mention FossPatents in parentheses in the first sentence.

 

Here's the headline if I wrote it: "Apple Faces New Challenges to Core Multi-Touch Patents“ [credit: Foss Patents]"

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post #16 of 27
Quote:
Originally Posted by mdriftmeyer View Post

Gee, I stopped reading after the first page and the included diagram of flow. Sorry, but the rubber banding will stay Apple's patent.

 

Mentioning a touch screen [one can assume designed for a Web Kiosk interface] won't change a damn thing.
 

Gestures once again targeting a web browser interface. Again, a futile waste of time. App heuristic vs. System-wide heueristics specifically targeting multi-touch systems that extends to pressure sentitive touch again is Apple's patent.

 

Mueller doesn't know his head from his ass on the physics and specific focus that he describes as just, ``describes gestures that are identify based on an angle of initial movement with a certain level of tolerance,'' when it goes far beyond that, but then again Mueller is now bringing this up in defense of his employer, Google.

 

He claims to have argued against it for a long time, however Apple just received the patent April 2012.

 

http://www.theverge.com/2012/4/1/2918520/court-adopts-apples-broad-interpretation-scrolling-patent-rejects-motorolas

 

The Verge ruling against Motorola and thus against GOOGLE.

 

Eat it, Mueller.

 

If you read the patent, http://assets.sbnation.com/assets/1036701/US7479949.pdf the examiner source a large array of prior art documents that go back to 1994 and upon reviewing the large patent granted it to Apple.

 

The in-depth complexity of this '949 that Mueller summarizes like a child is an insult to the science behind it's seemingly simple reality and how easy ``it just work.''

I always really enjoy your very knowledgable insights.  Thank you.

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post #17 of 27
Quote:
Originally Posted by Gatorguy View Post

These re-exam requests contain prior art not before seen or mentioned. Mr. Mueller seems to feel it's likely the '949 won't survive a re-examination, at least in total.. IANAL and even tho Mueller isn't either his opinion should probably be noted, particularly since it's somewhat rare for him to make that type of comment on an Apple patent.
http://www.fosspatents.com/2012/05/apples-two-most-important-multitouch.html

That's par for the course. People ALWAYS claim that there's prior art that hasn't been considered. But if there were prior art, why wasn't it brought up the previouis times that USPTO was asked to reconsider? Almost always, it's because the new 'prior art' isn't very relevant.

Again, based on decades of experience dealing with patents, it is very rare for a patent to be thrown out by the USPTO after it has already been examined multiple times.

Google's only real hope is to get a court to invalidate it. That does happen with some frequency - but it takes much longer and is much more expensive. And the fact that Motorola has already lost a court case involving this patent also makes it somewhat less likely.

Mueller? His biases show through regularly. He has insisted that the '949 patent wasn't valid from the start, yet it has withstood several challenges at USPTO and at least one court challenge, so his view that it is CLEARLY invalid is wrong. Even if it is later overturned, it clearly wan't THAT obviously invalid.
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post #18 of 27
Quote:
Originally Posted by mdriftmeyer View Post

Gee, I stopped reading after the first page and the included diagram of flow. Sorry, but the rubber banding will stay Apple's patent.

 

Gestures once again targeting a web browser interface. Again, a futile waste of time. App heuristic vs. System-wide heueristics specifically targeting multi-touch systems that extends to pressure sentitive touch again is Apple's patent.

 

Mueller doesn't know his head from his ass on the physics and specific focus that he describes as just, ``describes gestures that are identify based on an angle of initial movement with a certain level of tolerance,'' when it goes far beyond that, but then again Mueller is now bringing this up in defense of his employer, Google.

 

http://www.theverge.com/2012/4/1/2918520/court-adopts-apples-broad-interpretation-scrolling-patent-rejects-motorolas

 

The Verge ruling against Motorola and thus against GOOGLE.

About a month after that Verge article you mentioned, Judge Posner issued a ruling in Motorola's favor instead. He agreed with Moto's argument that they were not infringing with 6 of their applications because they use tapping rather than the swiping motion Apple claims in the '949 patent description. Thus Motorola ( and now Google) could not be infringing Apple's touch-screen patent in those 6 built-in apps. According to the judge if consumers consider tapping and swiping to be different actions then Apple could not realistically make the claim they were the same, ruling in Motorola's favor.

http://www.businessweek.com/news/2012-05-01/motorola-mobility-defeats-apple-finger-swipe-patent-claim

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post #19 of 27
Quote:
Originally Posted by Hyram Gestan View Post

I smell Google behind this.  They are a bunch of cowards to try to keep secret.  They want to rip the heart out of iOS.

 

But they will fail.  It is easy to claim that things are obvious - AFTER Apple innovates.  But before, nobody ever thought of it.

 

Google is just pure evil.  Its bad enought that they buy and sell people's identities, but now they want to ruin iOS.

 

It makes me want to puke.

did you just invent a scenario...then rage against it? then include a bunch of lies? Considering iOS nets Google more money than Android does wouldn't it be bad business to want to destroy iOS in any way?

 

Think...type...re-read...edit mistakes and just downright BS...THEN click post...

 

also you and I assume a vast majority of humanity have a very different definition of evil.

post #20 of 27
You guys have covered most of the specifics, so I’ll offer these generalities.

Ex parte reexamination is a good thing. It is cheaper and faster than litigation. And we want valid patents, right? That said, it is often used as a litigation stalling tactic. Judges will often grant a stay pending the outcome of a reexamination. Not sure what practically can be done about this.

It is theoretically much easier for a patent to be invalidated in reexamination than in litigation because the standard is much lower—a preponderance of the evidence, as opposed to clear and convincing evidence, of invalidity by anticipation and/or obviousness. (A preponderance is anything over 50%.)

Just because a prior art reference is listed on a patent doesn’t mean the PTO examiner “cited” it—that is, specifically called it out in an office action. Rather, it means that the examiner “considered” it (read or flipped through it, usually along with the other tens or hundreds of submitted prior art references). If a reference was cited, especially in a prior reexamination, good luck.

Prior art can be hard to find. For example, it could be a publication published anywhere in the world by the appropriate date. New stuff pops up unexpectedly, or challengers don’t appreciate the significance of an already disclosed reference on the first reading. If the prior art was already disclosed to the PTO, the requester will argue that the examiner didn’t appreciate its significance, which isn’t uncommon.

Almost all requests for reexamination are granted. This just means that the examiner believes the request raises a “substantial new question of patentability” but does not at that stage reflect an actual decision that a claim is invalid. There are opportunities for the patent owner to respond. So if this happens here, don’t worry (yet!).
post #21 of 27
Quote:
Originally Posted by mdriftmeyer View Post

Mueller doesn't know his head from his ass on the physics and specific focus that he describes as just, ``describes gestures that are identify based on an angle of initial movement with a certain level of tolerance,'' when it goes far beyond that, but then again Mueller is now bringing this up in defense of his employer, Google.

 

You people really need to get your stories straight. I'm pretty sure it's been mentioned before that Mueller worked for or was a consultant for Oracle, not Google. Hell, he's been of accused of being biased toward Oracle and against Google on this forum. Now that he says something that might benefit Google he's suddenly pro-Google and anti-Apple. Color me confused.

 

(Wait I guess it goes back to the nonsense where someone who is pro-Apple is smart and knows what he's talking about. And someone who says something negative about Apple is an idiot who doesn't know his head from his a-hole. Never mind that they're often the same people.)

 

So, last week when he hadn't said something that would negatively impact Apple, he was often quoted by the Apple fans as a reliable expert on patent litigation (and amusingly it was the Google/Android fans that were trying to discredit him). Now, this week when he argues that Apple might lose 2 key iOS patents, to the Apple fans he's simply an idiot AND a paid shill. GENIUS.

post #22 of 27
Quote:
Originally Posted by Robin Huber View Post


Which is what makes me think the real result being sought is just further delay. Justice delayed is justice denied. Google will drag its feet until Android as we know it is no longer in play--replaced by a successor. Meanwhile they will have won by using their pirated software to capture market share.

 

Wait, so market share suddenly matters for Apple? Every article that brings up how Android's market share has surpassed iOS (in the smart phone market) is greeted with comments like, "Apple doesn't care about market share. They're still raking in most of the smart phone profits." So which is it? 

post #23 of 27
Quote:
Originally Posted by Robin Huber View Post

Scott Forstall, listed on one of the challenge patents, works for Apple doesn't he?

 

Yes it is very possible the same Scott Forstall. but this detail could possibly be moot. The issue is that allegedly patents that existed before Apple filed theirs would be prior art and were ignored as such when the patent was granted. Who created the content doesn't really matter. UNLESS it is the only challenge patent and it was created by Apple or sold to Apple by Mr Forstall because prior art by the same company can actually be of benefit to a company's claim to have a patent granted if they play their cards right. 

post #24 of 27
Quote:
Originally Posted by caliminius View Post

 

You people really need to get your stories straight. I'm pretty sure it's been mentioned before that Mueller worked for or was a consultant for Oracle, not Google. Hell, he's been of accused of being biased toward Oracle and against Google on this forum. Now that he says something that might benefit Google he's suddenly pro-Google and anti-Apple. Color me confused.

MDriftmeyer himself showed the same confusion last year when Mueller had another less-than-supportive blog post involving Apple. At the time he didn't understand why forum members suddenly had problems with Mueller. Presumably he now understands.

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post #25 of 27
Quote:
Originally Posted by charlituna View Post

Yes it is very possible the same Scott Forstall. but this detail could possibly be moot. The issue is that allegedly patents that existed before Apple filed theirs would be prior art and were ignored as such when the patent was granted. Who created the content doesn't really matter. UNLESS it is the only challenge patent and it was created by Apple or sold to Apple by Mr Forstall because prior art by the same company can actually be of benefit to a company's claim to have a patent granted if they play their cards right. 

I don't think you're understanding the issue.

Even if the 'prior art' patent is owned by Apple, it could invalidate the '949 patent. One of the very strict rules that USPTO uses is that if you intentionally fail to disclose relevant prior art (and if Apple owns the prior art patent, failure to disclose it would be seen as intentional), you can lose your patent.

Frankly, I suspect that it's all nonsense. "We have prior art" is probably the most common challenge to patents and more often than not, the 'prior art' really isn't. And when it doesn't appear until this late in the process, it's even less likely to be truly relevant.
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post #26 of 27
Quote:
Originally Posted by SpamSandwich View Post

 

I thought he was the source of the story? If you directly swipe content or quote portions of it verbatim (even close to word for word), clearly source attribution is a must.

I noted a twitter back-n--forth between Caleb Carling from Wired and Florian Mueller on just this issue. Actually funny if you see Mueller's responses when taken to task for not disclosing his Oracle relationship in each journalistic blog concerning them. Check the posts from the 25th, expanding to show the conversation between them if necessary. It started with this question from Garling:

. Can I ask why there's no Oracle disclosure at the top of your blog posts that concern Oracle?

 

 

https://twitter.com/#!/FOSSpatents

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post #27 of 27

A story from today claims Apple may buy Neonode, the Swedish company holding patents for swipe-to-unlock that preceded Apple's filing by over three years. Take it with a grain of salt tho. The analyst breaking the story owns Neonode stock.

 

http://news.idg.no/cw/art.cfm?id=538D820E-06CF-0D51-D7FF2F006D41B613

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