As noted by FOSS Patents, Google's latest attempt to salvage the patent, and with it an attempt to win an import ban against Apple's iPhone, came in a public redacted version of the company's opening brief filed with the ITC, which looks to narrow claims to prove the property valid. More specifically, Google is looking to validate Motorola's U.S. Patent No. 6,246,862 relating to an infrared proximity sensor system that detects when a user brings a handset up to their ear, which in turn disables screen input to avoid errant touches.
Illustration from Motorola's '862 patent showing a hidden IR proximity sensor (134, 136) located near the speaker.
The internet search giant is asserting primary considerations to the Commission that the property in question is of a "non-obvious" nature, as well as secondary considerations relating to the patent's usefulness.
In April, Judge Thomas Pender found that Apple violated Motorola wireless technology patents, but deemed the IR property invalid due to indefiniteness. Following a review of the ALJ's decision, the Commission reversed the indefiniteness finding and sent the case back to Judge Pender. After looking at the patent for a second time, the jurist issues a remand initial determination in December, once again finding the Motorola patent invalid for "lack of novelty." Following the decision, the six-member head of the ITC announced in February that it would once again be reviewing the ALJ's findings.
In its filing, the Mountain View company also pointed to a quote from late Apple cofounder Steve Jobs, as seen in the tech guru's biography written by Walter Isaacson:
Here, the technology of the '862 patent was recognized as a 'breakthrough' by none other than Apple's former CEO (Mr. Steve Jobs). On cross examination, Apple's expert, Mr. Lanning, could not deny that Mr. Jobs himself characterized the incorporation of a proximity sensor into the iPhone as a 'breakthrough' to his biographer, Walter Isaacson: '[a]nother breakthrough was the sensor that figured out when you put the phone to your ear, so that your lobes didn't accidentally activate some function.' [...] The sensor described by Mr. Jobs is the very technology that the ALJ found to infringe. [...] And there can be no doubt that this passage refers to the technology of the '862 patent: it describes a sensor that prevents the inadvertent actuation of the phone when it is put to the user's ear. The recognition that the invention of the '862 patent was a 'breakthrough' weighs heavily against a finding of obviousness, particularly since it came from Apple itself.
According to the quote, Jobs showed interest in the feature which allowed a smartphone to determine when it was close to a user's ear, however Motorola's patent mentions basic infrared technology that it did not invent, possibly weakening the Google-owned telecom's case.