Apple’s Odd New Patent And What It Says About Our Patent Laws

A new patent granted to Apple raises once again the question of how far patent protections should extend.

After a two year process, Apple has been granted a patent for something that most smartphone users now consider commonplace, but which could soon become the subject of multi-billion dollar patent disputes:

Apple has been granted a patent on unlocking a smartphone or tablet using a touchscreen gesture.

The application, which was filed in June 2009, covers a range of commonly used techniques including swiping and pattern entry.

As well as on the iPhone and iPad, such systems are built into Google’s Android and Microsoft’s Windows Phone 7.

The patent is likely to become another weapon in Apple’s arsenal as it continues to sue rival manufacturers.

Devices using the Android operating system have been the focus of particularly aggressive litigation.

Apple co-founder Steve Jobs believed that the product was a rip-off of iOS and vowed to “destroy” it, according to his recently released biography.

To date, his firm has waged a largely proxy war, targeting companies such as Samsung and Motorola which use Google’s software.

As a result, Samsung is currently banned from selling its Galaxy Tab 10.1 in Germany and Australia.

The scope of the patent is rather broad, to the point where it conceivably covers not only Android phones, but also phones running Windows Mobile:

Apple’s patent – US patent number 7657549 – states: “A device with a touch-sensitive display may be unlocked via gestures performed on the touch-sensitive display.

“The device is unlocked if contact with the display corresponds to a predefined gesture for unlocking the device.

The text of the patent is broad and would appear to cover a number of the technologies used by Google and Microsoft in their handheld devices.

However, that did not necessarily mean that Apple would be able to exert its will, according to Silas Brown, an intellectual property solicitor with London-based law firm Briffa.

“Often you will have situations where patents are argued through long and hard to get to registration, but when they are challenged there is a counter action to claim that the patent shouldn’t have been granted.”

Mr Brown explained that such patents could be invalidated for a number of reasons, including being too broad, too simple or “obvious” in the current technological context.

In Europe, software cannot be patented in its own right. But Apple may still have a case, according to Mr Brown, if the function of unlocking was shown to materially improve the performance of the hardware.

“[Apple’s] argument would be more in that direction – that this is an invention which has an affect on hardware, for example security,” he said.

Determining that, would likely mean more work for lawyers and specialist engineers.

I suppose I shouldn’t be complaining about more work for lawyers, but there’s something about this that strikes me wrong nonetheless. For one thing, once you’ve developed the idea of a touchscreen, which existed long before the iPhone, the idea of swiping your finger to complete actions isn’t really that big of an innovation, at least not one that seems non-obvious enough to give a single company a 17 year exclusive license on its use. For one thing, in the computer industry 17 years is literally several lifetimes. Seventeen years ago, the original MacIntosh had only been released a few years earlier and PC owners weren’t even running Windows 95 yet. Cell phones were bulky and featureless. Freezing technology at the point it was at back then would have been a deterement for everyone and, while it’s true that granting patents like this merely usually means that Company B has to pay Company A a license fee, one has to wonder if that license fee is really earned when the “innovation” patent is so seemingly obvious as the one at issue here.

As it turns out, though, patent battles are becoming an increasingly large part of the way that technology companies, especially older ones, make money:

It seems not a week goes by these days without news of another patent battle or announcement: Microsoft reaching licensing agreements with various device manufacturers. Apple and various handset manufacturers filing suits and countersuits. Oracle suing Google over the use of Java in Android.

Not to mention barbed digs and jabs that company executives trade over blogs, Twitter and news releases.

One example:

After Microsoft and Samsung announced a patent-licensing agreement last month involving Google’s Android operating system, Google issued a statement saying, in part: “This is the same tactic we’ve seen time and again from Microsoft. Failing to succeed in the smartphone market, they are resorting to legal measures to extort profit from others’ achievements and hinder the pace of innovation.”

Microsoft’s PR chief Frank Shaw shot back via Twitter: “Let me boil down the Google statement … from 48 words to 1: Waaaah.”

So what gives? What’s up with the spate of patent petulance?

The answer is that they’re visible signs that technology companies’ patent practices have evolved from using them to defend their own inventions to deploying them as a significant part of competitive strategies in the fast-growing mobile market

Over at Forbes, Tim Lee has a different view of the way the law his handling these situations, specifically as it applies to this new dispute between Apple and the makers of the various Android phones:

The important question isn’t whether such “stealing” occurred, it’s whether we want to live in a world where it’s illegal. Do you want to live in a world where only Apple is allowed to make phones with pinch-to-zoom capability (and dozens of other features) until 2027? I sure don’t.

This isn’t the first time Apple has tried this particular tactic. The lawsuit against Samsung is a replay of its “look and feel” lawsuit against Microsoft two decades ago. Apple was the first company to bring the graphical user interface to a large audience with the Lisa in 1983 and then the Mac in 1984. Microsoft famously released a competing GUI-based operating system, Windows, in 1985. Apple sued, alleging that Windows had “stolen” the “look and feel” of the Mac OS, and had thereby infringed Apple’s copyrights.

At the time, the concept of copyright protection for software was still quite new, so it wasn’t obvious how broad it was. The courts eventually decided that it didn’t extend to “look and feel,” allowing Microsoft to continue selling Windows and dominate the PC business.

You can imagine an alternate universe in which Apple won its lawsuit, either because judges interpreted copyright law differently, or because software patents had been more widely available (they didn’t become common until the late 1990s). Would anyone seriously contend that we’d be better off today if Apple (or Xerox, which pioneered some of the key concepts) had held a monopoly on basic UI concepts like menus, buttons, and scroll bars for all of the 1980s and 1990s?

Matthew Yglesias comments:

Copying of business concepts is integral to the “invisible hand” model of market competition. The idea is that firms want to become more profitable. So they think up ways to cut costs or raise prices or increase sales or whatever. Profit! But then other firms look at those ideas and copy them. The result is a Red Queen’s Race. Firms need to be constantly copying other firms’ best ideas just to avoid going out of business. The ultimate beneficiaries end up being consumers, who take advantage of the more/better/cheaper products. Even the lamest, most obvious kinds of copying are good for the world. I remember well when Microsoft unveiled Windows with its “Recycle Bin” function that happened to be exactly the same as Apple’s longstanding “Trash” function. It was slightly offensive to human dignity that they were copying both the function and the metaphor while slapping a slightly different name on it to seem like they weren’t copying. But the world is a better place for it. It’s a good function and a good metaphor, so as many people as possible should use it.

There seems to be some logic in this. Patents are certainly an important part of the economy, and true innovation does indeed deserve to be protected. However, if we’ve learned anything over the past two decades or so, going back to the look-and-feel lawsuit between Apple and Microsoft, it’s that our current patent law system isn’t designed to handle technological innovations well at all, especially on the software side. The all-or-nothing 17 year exclusivity patents that grew out of the industrial age don’t seem very well suited somehow to an industry where borrowing and building on the ideas of others is the very basis of the industry. After all, the GUI interface that Steve Jobs was trying to sue Microsoft over was something he copied from things he saw when he visited Xerox PARC before Lisa and the Mac ever existed! Does that mean that Xerox should have been able to stop him from making those innovations? Of course not.

The amount of lobbying money from big technology companies like Microsoft, Apple, Sun, and IBM makes it unlikely, but it’s far beyond time that Congress undertake a serious examination of our patent laws and the extent to which they have the potential to suppress innovation in one of the few industries out nation manages to excel in.

FILED UNDER: Economics and Business, Law and the Courts, Science & Technology, US Politics
Doug Mataconis
About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010. Before joining OTB, he wrote at Below The BeltwayThe Liberty Papers, and United Liberty Follow Doug on Twitter | Facebook

Comments

  1. Vast Variety says:

    Maybe limit exclusivity to 1 year?

  2. PD Shaw says:

    Apple has been granted a patent on unlocking a smartphone or tablet using a touchscreen gesture.

    If the gesture involves a single and specific finger, I’ve been using it for decades for all kinds of apps, since at least my Commodore 64.

  3. sam says:

    Ah, Apple, pure as the trademark/copyright driven snow jobs (–and yes I did)

    As long as the Beatles and Apple have co-existed, fans of both have wondered: when are these crazy kids finally going to get together?

    It has finally happened, but it wasn’t easy. The two sides have been fighting off and on since 1978 when the Beatles accused Apple Computer of infringing on the trademark of their business concern, Apple Corps. They settled that one — the Beatles licensed the Apple name to the computer company — fought again over Apple’s music synthesizer, settled again, fought again over iTunes’ apple logo and settled that one too. And now, 32 years later, the two are ready to do business, with Apple selling Beatles singles and albums on iTunes. [Apple and the Beatles: A Long and Winding Road]

    What goes around comes around…

  4. Rick DeMent says:

    This issue alone should convince anyone that big business arbors a free market every bit as much as Marx did.

  5. PJ says:

    I have no idea about when mouse gestures were first used, but in games they have at least been used since 2001 for games (Black & White) and for web browsers also since 2001.

    So what we have here is a pointing device (finger or mouse) that is used to perform a gesture to accomplish something.

    Question is if it’s something that you can patent for every new kind of technology? Should I be able to get some kind of generically written patent like this for the same idea “Minority Report” style?

    This ruling is as bad as Apple’s trade dress victory for the iPad a couple of weeks ago.

  6. john personna says:

    As a programmer I would draw a line between what I considered clever patents, and mere “discovery” patents. In the former there is a well known problem domain with lots of people working on it. When there was a break-trough it was because someone was clever.

    On the other hand, there were certain times when there was a whole new problem domain, and the first person who happened to be assigned was doing a lot of things never done before. You didn’t have to be clever. You just had to be there. A new thing was patentable.

    I suppose this is supposed to be covered under the requirement that innovations be “non-obvious” but for years the courts punted on that. Maybe to the courts too much of what programmers did was “non-obvious.”

    FWIW, using a swipe to open a touch-screen tablet (a small one in the case of a phone) seems obvious. Certainly in this case it was not clever.

  7. MichaelB says:

    Just last month Congress passed the America Invents Act https://secure.wikimedia.org/wikipedia/en/wiki/Leahy-Smith_America_Invents_Act to reform patent laws. Based on the amount of lobbying by large companies and the criticism of the law, it is not clear that this is an improvement.

  8. @john personna:

    I think the biggest problem is that, for a long time, the patent examiners at the USPTO weren’t always well versed in computer science and technology. This seems to have improved in recent years, but examples like this “Swipe To Unlock” patent don’t give me much faith in the examiners. Usually what happens is the Courts restrict the reach of the patent, but that only happens after years of litigation and a lot of legal and expert witness fees.

    Seems pretty wasteful to me.

  9. MBunge says:

    As usual, Yglesias coughs up the worst and most wrong-headed argument. This isn’t about a business concept but a technological innovation, with the question being whether the innovation is worthy of a patent. But because Yglesias is not content with improverishing America’s manual labor and seeks to turn her information workers into starving artists, he has to try and jam this example into his crusade against the very idea of intellectual property.

    Mike

  10. Kit says:

    The original iPhone marked a revolution in an industry where, self-serving press to the contrary, revolutions are rare. If anything could be protected by patents, this would seem a prime candidate. And yet whenever news of some court case reaches my ears it always seems to involve something trivial. The system seems worse than broken for anyone other than lawyers. Apple has recently been raising the heat in the patent wars, and while they seem to have cause for grievance, I cannot help but think they are playing with fire. How many patents are involved in a modern smartphone? Tens of thousands? I’ve seen jump ropes with half a dozen. And a single poorly conceived patent might warrent an injunction blocking the sale of a product throughout an entire continent. Were it only a big-boy game, they could probably work it out, but the barriers to entry are so low and the stakes so high that of course many have long since sniffed easy money. So I guess the clean-up job will fall to our boys in Congress…

  11. @MBunge:

    Perhaps we can agree that innovations like this are worthy of some kind of protection, but I think it’s clear that our current patent law system isn’t well suited to information technology, and that to a large degree it’s becoming a cash cow for established companies to extract $ from newcomers. At some point, there needs to be a re-balancing of the scales.

  12. Tlaloc says:

    The entire concept of intellectual property needs to be reworked, it’s become insanely silly, and at time intensely frightening. The fundamental conceit is that you have to regard ideas as property or people won’t create, except we have several thousand years of evidence to the contrary. Nor are modern IP laws particularly capable of protecting the rigorous walls they insist are sacrosanct.

    So we end up with the current situation where piracy is common and essentially unstoppable but people who might otherwise legitimately create and contribute to the world are dissuaded by the threat of lawsuits. The worst of all worlds.

  13. Liberty60 says:

    Perhaps we can also agree that since corporations benefit from the coercive power that government takes on behalf of the patentholders, shouldn’t they pay for the service iin the form of taxes?

    Corporations receive far more benefit from a patent than ordinary citizens so isn’t is reasonable to ask for them to shoulder a larger share of the tax burden?

  14. Tlaloc says:

    The original iPhone marked a revolution…

    okay, stop. That’s about all the apple fanboy-ism I can take.

  15. john personna says:

    In my opinion many, many, people knew that something like the iPhone would be made. Many similar things had been made. Early-on there had been Newton and Magic Cap. Palm Pilots and Blackberries were on the trajectory.

    But everyone also knew that with then-current tech it would cost way too much, like $500 for a phone!

    Which leads us to the one really unique thing that Apple and Steve had that no one else had … a committed base that wouldn’t grudgingly pay $500 … no, they’d camp out all night to pay $500 for a phone.

    And so Steve could go before anyone else.

  16. Tlaloc says:

    technological advance thanks to cult of personality…wonderful.

  17. mattb says:

    @Tlaloc, frankly much of science has progressed through cults of personality — or at the very least who gets credit for the discovery. We just tend to not like to discuss that part.

  18. mattb says:

    Speaking as the “co-inventor” of a completely ridiculous patent for “websites that automatically generate interactive photo galleries” (yes… seriously… no I don’t own the patent and yes I am embarrassed about it), I can firmly say that the patent system is really broken.

    NPR/Planet Money/TAL did an amazing segment on patents that is really worth a listen (http://www.npr.org/blogs/money/2011/07/26/138576167/when-patents-attack). Complicating this situation even further is the fact that often multiple patents are awarded to different companies/inventors for the same basic concept.

    It’s hard to imagine what would have happened if Daguerre existed now, but chances are his process would not have been offered up as a “gift to the world.”

  19. Kit says:

    @john personna:

    In my opinion many, many, people knew that something like the iPhone would be made

    I’m not really sure what to make of this. I can tell you from what I’ve read in the popular press about many of the wonders that genetic engineering will roll out over the next generation. What is that supposed to mean as far as patents are concerned?

    As for the iPhone more specifically, I find it hard to believe that “many, many people” knew it was coming. If so, why didn’t anyone at Nokia, a company which now finds itself gutted? The way I read it, the entire industry was caught flat-footed by Apple. They were going off in the wrong direction and generally refused to admit it. How else did Apple and Android come to so quickly dominate?

    More generally, my point with the iPhone was that the current system is hopelessly and dangerously broken when real advances can’t seem to find protection through patents (and instead have to rely in rather trivial ones), while trivial patents can so easily serve the ends of rent seekers.

    Contra Doug in an earlier comment

    a cash cow for established companies to extract $ from newcomers

    I don’t get the impression that any of the big tech companies earn significant revenue from patents, although I’m certainly willing to consider the fact that I am flat-out wrong on this score. I do see how licensed standards such as GSM, USB, DVDs, et al are worth serious money, but does Amazon, for example, make any money to speak of from its infamous One Click patent? I get the impression that 99% of tech patent are established from a purely defensive perspective. Increasingly, we are seeing them given away in bulk and sold in bulk, which seems to imply something about their individual worth.

  20. Kit says:

    @Tlaloc:

    From looking at your past comments, I see that you consider that some sort of refutation.

  21. john personna says:

    @Kit:

    Think about the pieces we had.

    – we had cell phones
    – we had camera phones
    – we had wireless internet
    – we had tablet computers
    – we had touch screens and interfaces

    And we had a tech commitment to “convergence” going back decades. That was a goal to collapse pockets full of devices into one … but which one would win?

    Anyway, someone obviously would combine camera phone, wireless internet, tablet-style computing and a touch screen. That was given.

    The Apple “delta” was their choice of touch-based interface for all that. Probably most important was the fearless “one button” device, and reliance on touch. That seems very Steve.

    But what I’m saying is that anyone else combining the previous technologies would produce something similar, and in some areas their interface would “look” like the iPhones … because how many ways can you do a small screen web browser? Etc.

  22. john personna says:

    Just to give one point on the history, pre-iPhone, consider the Palm Treo 180g.

  23. Kit says:

    @john personna:

    I see what you are saying, but I disagree when you say that something similar was bound to take shape. We all see iPhone-type devices as obvious now, but it most certainly did not seem that way at the time. Look at Microsoft’s pre-iPhone efforts to see where the general consensus lay beforehand. Even more sadly, look at Palm. Look at Nokia before and Nokia now. Look at the leading mobile OS, Symbian. Basically, the industry was blindsided by Apple. I just don’t think this can really be argued. Show me a single product line that was established before the iPhone and has simply followed its natural evolution until the present day. All swept away.

    But I only really brought it up as an example of what is wrong with the patent system. If there is nothing more than swipe-to-unlock in the iPhone, there really cannot be much use for patents, at least in IT. I don’t really know what a functioning system looks like in today’s age, but I know ours is not it.

  24. Joe says:

    Does no one actually edit and do “journalists” no longer fact check anything before they post articles any more? First off the patent number is US 7657849 not US 7657549. Second, the claims of a patent are what rules the day, not necessarily the description of the invention, which you describ as “rather broad”. It is this kind of irresponsible reporting, from people who do not understand patents and intellectual property that causes all the patent-haters to jump on the hater bandwagon.
    This patent only covers a method of controlling a touch screen device by moving an unlock image along a predefined displayed path on the touch-sensitive display in accordance with the contact, wherein the unlock image is a graphical, interactive user-interface object with which a user interacts in order to unlock the device. Any touch screen device that is unlocked by any other type of gestures performed on the touch-sensitive display without the unlocking image moving from a user-locked to a user-unlocked state should not be impacted by this patent. Apple products are as much about design as they are about performance. Protecting Apple’s unlock slider should not be used as another peanut-butter and jelly sandwich example of why patents are bad.

  25. mattb says:

    We all see iPhone-type devices as obvious now, but it most certainly did not seem that way at the time. Look at Microsoft’s pre-iPhone efforts to see where the general consensus lay beforehand. Even more sadly, look at Palm. Look at Nokia before and Nokia now. Look at the leading mobile OS, Symbian. Basically, the industry was blindsided by Apple.

    I saw iPhone like prototypes in a couple research labs of major corporations — including at least two at companies outside of the cell phone industry.

    The thing is that none of these companies were able to follow through on the prototypes and most died at early mock-up stages. In part this was about misjudging the market and the price point.

    One of the things unique about the iPhone and later the iPad, was that outside of the Blackberry, it was the first phone that Americans were willing to pay that high a premium for enmass. The other aspect of it was that it made the app/app store model a viable option.

    It’s also important to note that even Apple was caught by surprise by aspects of the iPhone success (and again, I look broadly at what Apps sold).

    But to John’s point, it really was a matter of when, not if, an Iphone like device happened. (and BTW, this is true about alot of science/technical leaps).

  26. MBunge says:

    @Doug Mataconis: “I think it’s clear that our current patent law system isn’t well suited to information technology”

    Absolutely. But read Yglesias’ argument again. It’s not about intelligently reforming patent law to deal with the realities of information technology. It’s a fundamental challenge to having any patents at all. That’s because what MattY’s really concerned with is being able to get anything he wants on the internet without having to pay for it, so he embraces a philosophy that justifies that no matter what its practical implications.

    Mike

  27. Kit says:

    @mattb: it really was a matter of when, not if, an Iphone like device happened. (and BTW, this is true about alot of science/technical leaps)

    With all due respect, I cannot agree. Were there only one way to skin a cat in the engineering realm, then patents would be all-powerful as there would be no working around them. History shows that separate cultures developed plenty of different ways of accomplishing the same thing. Were we to make contact with an alien race, I can assure you that they would not be running Windows. Scientists discover, engineers create.

  28. MBunge says:

    @Tlaloc: “The fundamental conceit is that you have to regard ideas as property or people won’t create, except we have several thousand years of evidence to the contrary.”

    And how many ideas were created in the thousands of years before the rise of modern intellectual property philosophy and law? How many ideas have been created since? No one alive today knows what the marketplace would be like without intellectual property laws. In fact, everyone alive today is at least 10 or 15 generations removed from a marketplace without some sort of intellectual property law or concept. The fundamental conceit is that you change the system which has allowed and enabled the greatest production of ideas in human history without changing the level or quality of that production.

    Do today’s intellectual property laws need to be reformed? I don’t think you can honestly argue otherwise. I don’t believe that reform is ever going to happen, however, as long as the debate is contaminated by those who only want to steal the product of other people’s labor.

    Mike

  29. john personna says:

    @Kit:

    I think the big difference between a Microsoft smartphone and an iPhone was that most people never saw a Microsoft smartphone.

    The average joe thinks that iPhone == smartphone, and that 100% of the “invention” came with it. That is not at all true.

    I mean, go ahead and list the specific inventions that separate the iPhone from the prior art.

  30. john personna says:

    In 1993, Apple released the Newton PDA, equipped with handwriting recognition; and IBM released the first smart phone called Simon, which featured a calendar, note pad, and fax function, and a touch screen interface that allowed users to dial phone numbers. In 1996, Palm entered the PDA market and advanced touch screen technology with its Pilot series.

  31. grumpy realist says:

    Standard mess–sprawling patent will be deliminated in court. The other side (if they have any brains) will go rummaging around in Japanese and non-English articles about technology, discover something very similar to Apple’s “unlock”, and then negotiate with Apple to get a license at a really cheap price. Nobody in the game wants to get rid of the patent; they simply want to be able to “buy in” to the technology area it protects without having to pay anything. Hence the looking around for the prior art weapon….

    Been there, done that, seen that. That’s how the game is played at present.

  32. DRE says:

    Cell phones have had unlock by pressing a key sequence forever. The touch screen may have been an innovation, but an unlock sequence using the touchscreen is about as obvious as anything could be.

  33. Kit says:

    @john personna: go ahead and list the specific inventions that separate the iPhone from the prior art

    This is really starting to grow wearisome. The thread concerns patents but some people only want to talk about Apple. I’m not one of them.

    According to this article from two years back, the iPhone has 200+ patents:
    http://www.iptoday.com/issues/2009/11/articles/how-many-patents-take-build-iPhone.asp
    I guess you can look them up and thereby answer your own question.

    Personally, I prefer looking at the companies and operating systems of the mobile phone market before and after the introduction of the iPhone. Had Apple merely been lucky in selling a more expensive phone than its rivals thought viable, we would have simply witnessed a somewhat faster evolution of the market. That is not what happened. I am getting the impression that you are hoping to have an Rodney King-moment by placing every small piece of evidence under the microscope so that you can somehow convince everyone that the mobile-phone market has not radically changed over the past four years and that in no case was the iPhone responsible. Crazy talk.

    Let’s make this easy: point me to a smart phone sold today that is a direct descendent of the same line sold four years ago. Not Windows Phone (incompatible with Windows Mobile), not Android (wasn’t around), not Palm (dead), not RIM (new OS). Symbian seems to be a dead man walking and only half-alive because Nokia has to sell something until it can transition to Windows Mobile. Or maybe you are talking about the LG Chocolate, the top-selling smart phone when the iPhone hit the market. I don’t know about you, but it feels a little dated. How can this be when so many people so clearly saw the future? Please explain!

  34. john personna says:

    @Kit:

    You are setting stupid bars and exclusions. Why the hell would you rule RIM out with an new OS, when iPhone itself was just a new Apple iteration with a new (actually recycled NeXT) OS?

    Android actually is very much a parallel line to iPhone. iPhone uses a derivative of the pre-existing NeXT UNIX-styled OS with a variation on the Apple pre-existing programming model. Android uses a derivative of the pre-exiting Linux UNIX-styled OS with a variation on the pre-existing Java programming model.

    The fact that Apple has filed 200+ patents to fill the gaps is exactly the problem we are talking about. And the fact that no big-picture INVENTIONS jump out to go with those patents seals the case.

  35. john personna says:

    (You seem to think that Apple’s critical mass in the market proves their innovation, when I’m saying their critical mass was sufficient, without any particular invention. They just needed a good clean smart phone with spit and polish. That spit and polish, and incredible attention to detail, is what Steve brought … but it isn’t the same as invention.)

  36. john personna says:

    And of course when Microsoft claimed their Windows dominance was the result of innovation, it was exactly the same sort of BS.

  37. Kit says:

    @john personna: @john personna: Basta!

    Are you even reading what I write? Critical mass, innovation, filling mysterious gaps. I just can’t compete with the voices in your head.

    I’m saying their critical mass was sufficient, without any particular invention

    Let’s just leave the last word (whatever it was supposed to mean) with you.

  38. john personna says:

    Let me tell you another sad example. I was just out, and listening to the Buzz Out Loud podcast. They told a story related to the Apple/Samsung patent fight about the Galaxy Tab. The judge held up both tablets and asked the Samsung defense attorney to name, from across the room, which was which. She declined. This was told as a blow against Samsung, but geez louise.

    Tablets look like tablets. And so the judge is really implying that anything that looks like a tablet is an iPod clone, never mind that tablets of various sorts have been out there for years.

    This is a problem with our patent system. Everyone, even legal people who should know better get swept along thinking that the first popular item they had experience with was actually the first.

    This is the reason Microsoft made a ballyhoo with Surface. It wasn’t totally new itself, but it put a stake in the ground for “public perception of new.”

  39. Tlaloc says:

    From looking at your past comments, I see that you consider that some sort of refutation.

    Nah, I’m well aware that apple fan boys refuse to see anything as refuting their point of view.

    This is really starting to grow wearisome. The thread concerns patents but some people only want to talk about Apple. I’m not one of them.

    Do you often bring up topics you don’t want to talk about?

  40. Kit says:

    @Tlaloc: Comedian

    This really is too good! We’ll have to put you in the troll hall of fame. Zero content and maximum self-satisfaction.

  41. Kit says:

    @john personna: Tablets look like tablets

    Have you no shame? I can just imagine the trouble you have finding your car in the parking lot.

  42. john personna says:

    @Kit:

    Dude, a tablet is disappearing into the display. It is a color touch screen with the smallest possible bezel around the edge. Technology has made that bezel smaller and smaller. And the pad thinner.

    If you are serious about Apple’s contributions, you should be looking at what’s on that screen, close up, after you turn it on.

    If the close-up image on the screen of a Samsung matches the iPad, it would be a copyright infringement. But it it’s just a touch screen with Icons … heck that 1993 IBM phone had those … with the best display technology then available.

  43. Kit says:

    @john personna

    How about the power adapter? Coincidence or simply the shape that every adapter will have a couple of years hence?
      http://9to5mac.com/2011/09/24/oh-samsung-you-are-making-this-too-easy/

    Post another tablet power adapter that is such a dead ringer and I guess I’ll have to admit I was wrong. While you are busy avoiding that question, perhaps you can also avoid telling me, dude, why tablets are supposed to look similar but not smartphones, in particular Samsung’s latest compared to Apple’s.

    And if it is not too much for one post, perhaps you might also elaborate on your previous idea that just because Rim opted for an overhaul of its outdated OS, in fact the iPhone traces its lineage back to Unix and… and… Well, I never could make head nor tails out of that. I remember that it had something to do with the future being so clear that after the iPhone everyone else junked their work and started over.

    Extra credit for squaring this circle:

    Nokia: our platform is burning

    And:

    john personna: spit and polish, and incredible attention to detail, is what Steve brought

    Spit and polish sent the world’s largest phone company into a tailspin. Happens all the time, right?

  44. john personna says:

    @Kit:

    You are moving the discussion a bit. The fundamental thing a tablet is, is a pseudo sheet of paper. When someone copyrights a magazine they don’t copyright the paper part, or the ink part, they copyright what they put on the paper.

    Now, power adapters. They have been a variety of shapes. The main thing is that they have been getting smaller and smaller. So. You’ve got a power outlet, and you want a charger to fit it and get smaller and smaller. How many shapes are there? Rectangle, circle, square. Should one company own each? Should Apple own the square/cube and someone else totally own the circle/cylinder?

    That’s where the lawsuit is heading right, an ownership on a basic geometrical shape?

    And if it is not too much for one post, perhaps you might also elaborate on your previous idea that just because Rim opted for an overhaul of its outdated OS, in fact the iPhone traces its lineage back to Unix and… and… Well, I never could make head nor tails out of that. I remember that it had something to do with the future being so clear that after the iPhone everyone else junked their work and started over.

    Actually, it really should have made sense to you. The iPhone is an indirect descendant of the NeXT workstation, and before that the Xerox STAR.

  45. Kit says:

    @john personna:

    Now, power adapters. They have been a variety of shapes.

    Good stuff. Now show me some pictures. Either they will all look virtually alike or not. If so, then I see your point; if not, then I’d like an explanation about Samsung’s, if you please.

    That’s where the lawsuit is heading right, an ownership on a basic geometrical shape?

    Don’t play coy. Show me two or three other power adapters that are virtually indistinguishable and I’ll admit that Apple just happened to stumble on the Platonic ideal before its rivals could get to market. This is a slam dunk for you; don’t let your modesty hold you back. If you cannot, would it be asking too much for you to consider that Samsung blatantly copied Apple? No, no, I’ve overstepped the bounds of decency. Just send along the comparison photos.

    The iPad is an indirect descendant of the NeXT workstation, and before that the Xerox STAR.

    And also:

    there was a whole new problem domain, and the first person who happened to be assigned was doing a lot of things never done before. You didn’t have to be clever. You just had to be there. A new thing was patentable.

    So we finally get down to your point! Apple’s products were not “new things” because they can be traced back to work at Xerox which can be traced back to ENIAC which can be traced back to the invention of the wheel. Why didn’t you just say this from the beginning?

    So let’s try to work backwards. The iPhone is really just an evolution of work at Xerox because of Unix, although as far as I can tell Alto did not use Unix. Maybe you mean the modern GUI, but at this point I hardly expect accuracy out of you. So, moving right along, that’s why the iPhone was such a non-event and so readily foreseen. Rim in particular saw it and simply waited a decent time to change their operating system. That’s your story, right?

    Don’t forget to answer my questions, including those from my other posts. You so love to “move the discussion” that you hardly seem to get round to answering a single one.

  46. PJ says:

    @Kit:
    If you are going to bring up adapters, then I’m going to bring up the WD TV Mini.

    Here’s an image of the Apple TV (1st gen).
    Color: Grey/Silver.
    Height: 1.1 in.
    Width: 7.7 in.
    Depth: 7.7 in.
    Released on January 9, 2007.

    Here’s an image of the WD TV Mini.
    Color: Black.
    Height: 0.8 in.
    Width: 3.6 in.
    Depth: 3.6 in.
    Released in September 2009.

    And finally here’s of the Apple TV (2nd gen).
    Color: Black.
    Height: 0.91 in.
    Width: 3.9 in.
    Depth: 3.9 in.
    Unveiled on September 1, 2010.

    Now the difference between the Apple TV (1st gen) and the WD TV Mini is fairly obvious. While the shape with rounded corners are similar, they have different color, and clearly different sizes.

    Then one year after the WD TV Mini was released, Apple announces the second generation of the Apple TV.
    Now, the color, shape, and form are almost identical to the WD TV Mini.

    I wonder if an Apple lawyer would be able to tell them apart…

    But I guess Western Digital traveled back in time and copied Apple?

  47. PJ says:

    @Kit: I’ve got some comparison photos for you as soon as my latest comment gets released from moderation. One small spoiler, they aren’t of power adapters.

  48. john personna says:

    @Kit:

    So let’s try to work backwards. The iPhone is really just an evolution of work at Xerox because of Unix, although as far as I can tell Alto did not use Unix. Maybe you mean the modern GUI, but at this point I hardly expect accuracy out of you. So, moving right along, that’s why the iPhone was such a non-event and so readily foreseen. Rim in particular saw it and simply waited a decent time to change their operating system. That’s your story, right?

    If you were trying to be honest you could probably see both themes there, the GUI and the UNIX. You’d admit they both go way back, and both influence modern phones and tablets.

    And of course the collapse of the computer into the screen, until technology makes it possible to be all-screen.

    It is really amazing. I was a UNIX programmer years and years ago. I really didn’t expect both Apple and Android t be selling me a UNIX phone with a bit-mapped graphics interface.

  49. john personna says:

    BTW, your “non-event” strawman is really sad.

    I never said non-event, I just made a statement about invention and patents.

    I had an iPhone and thought it was great. I switched to Android because that is more my technology base, but I can admit that fit-and-finish is lower.

    When people ask me what to get I say iPhone is the best, though Android can be really cheap (my phone was $20 at newegg).

  50. PJ says:

    @Kit:
    If you are going to bring up power adapters, then I’m going to bring up the WD TV Mini.

    Here’s an image.

    The first one is the Apple TV (1st gen).
    Color: Grey/Silver.
    Height: 1.1 in.
    Width: 7.7 in.
    Depth: 7.7 in.
    Released on January 9, 2007.

    The second one is the WD TV Mini.
    Color: Black.
    Height: 0.8 in.
    Width: 3.6 in.
    Depth: 3.6 in.
    Released in September 2009.

    The third one is the Apple TV (2nd gen).
    Color: Black.
    Height: 0.91 in.
    Width: 3.9 in.
    Depth: 3.9 in.
    Unveiled on September 1, 2010.

    Now the difference between the Apple TV (1st gen) and the WD TV Mini is fairly obvious. While the shape with rounded corners are similar, they have different color, and clearly different sizes.

    Then one year after the WD TV Mini was released, Apple announces the second generation of the Apple TV.
    Now, the color, shape, and form are almost identical to the WD TV Mini.

    I wonder if an Apple lawyer would be able to tell them apart…

    But I guess Western Digital traveled back in time and copied Apple?

    (If someone finds my original message in the moderation queue, they can just let it die…)

  51. john personna says:

    You know Kit, when I asked you to name an INVENTION, you gave me the square charger.

    WHAT THE HELL.

  52. matt says:

    @Kit: Wouldn’t surprise me if the same manufacturer made both power supplies.

  53. PJ says:

    I guess Kit ran away.

  54. Kit says:

    @PJ:

    I finally found some time to get back into this.

    What does Apple TV have to do with any of this? A few days have passed and I might well have missed or forgotten some point, but this particular topic goes back to my original reaction to the post by john personna at Thursday, October 27, 2011 at 13:41. He said that tablets look like tablets and expressed his incredulity that Apple could be suing Samsung over something so basic. The fact that another of Apple’s products which is just a box looks like another company’s box doesn’t immediately strike me as relevant. Still, for the sake of argument, let’s say that Apple completely ripped off someone. Given that, someone should sue them. Now let’s back to tablets.

    I’m going to assume that you agree with john personna. To my mind, his argument runs something like this:

    There is only one way to design a touch tablet. All tablets look the same now; they always have and they always will.

    I’m putting those words in his mouth, of course, but that’s what I take to be the spirit of the argument.

    Well, what suffices to knock that down? What if Samsung had a tablet out before the iPad which looked completely different, then turned around and made rather close copy? Not just the hardware but even the damn packaging would be directly inspired from Apple (not to mention the power adapter).

    http://tinyurl.com/6f2gbcy (multiple pages so click along to see all of it)

    How could Samsung have failed to have seen the one and only true design, not only in tablets but in smartphones, well, at least until Apple’s products came out? Anyone?

  55. Kit says:

    @john personna:

    I’m not sure where you are going with this. Care to rephrase it?

    I have replied to PJ above but it was more directed at you, so you should have a look.

  56. Kit says:

    @matt:

    In itself, that would be a reasonable assumption, and certainly it is trivial. But take a look at my reply to PJ on Sunday, October 30, 2011 at 07:44. Samsung made a complete volte face, not only with their smartphone and tablet, but also with their packaging (and transformers). I think Apple has a case.

  57. Kit says:

    @john personna:

    You know Kit, when I asked you to name an INVENTION, you gave me the square charger.

    WHAT THE HELL.

    You are confusing two separate discussions we are having. The power adapter came up in your dismissal of the Apple/Samsung court case. Your request for an invention came up in the other discussion. I answered that by pointing to the 200+ patents that Apple has filed. That was a direct answer to a direct question. Here was your reply:

    the fact that no big-picture INVENTIONS jump out to go with those patents seals the case

    Here is my dictionary’s definition of a patent:

    a government authority to an individual or organization conferring a right or title, esp. the sole right to make, use, or sell some invention

    Perhaps you might consider unsealing your case.

    I’ll reply to a couple of other issues later in the day.

  58. Kit says:

    @john personna:

    I never said non-event, I just made a statement about invention and patents.

    The crux of the issue comes down to my claim that the iPhone was a complete game changer that forced the industry to start over. You make the counter-claim that it was all foreseen and not such a big deal. I have pointed in particular to the sea changes in OS’s and market share, which you have not answered. You have vaguely pointed to inventions (answered) and lineage (answered). If you like, I’ll compile a list of questions we have asked, which have been answered and which avoided.