Pinch-to-Zoom and Rounded Rectangles: What the Jury Didn’t Say [Updated]

by Steve Wildstrom   |   August 29th, 2012

As the Apple v. Samsung trial neared completion last week, I worried about how a jury of nine ordinary folks were going to make sense of hours of highly technical testimony, more than a hundred pages of jury instructions, and a 20 page verdict form. I needn’t have worried. Whatever happens on appeal, I think the jury did an admirable job making sense of the case they were given. They certainly did better than much of the tech media, which have made a complete mess of the verdict.

Pinch and stretch drawing

Drawing: Microsoft Developer Network

For example, this by Craig Timberg and Haley Tsukayama in the August 29 Washington Post: “Friday’s $1 billion court ruling for Apple, which upheld patents for what manufacturers call ‘pinch to zoom,’ among other popular features, has clouded the future of the gesture for anyone inclined to buy mobile devices from other companies. Apple made clear its determination to press its advantage Monday, announcing plans to seek preliminary injunctions on eight phones made by Samsung, the loser in the case.”

There’s one serious problem with the first sentence, which was repeated dozens of times in stories in print and on the Web. Apple only has a limited patent (US 7,812,826) on the pinch to shrink, stretch to zoom gesture that is a core element of touch interfaces. And the ’826 patent wasn’t in dispute in the Samsung case because Apple never asserted it. In fact, this particular patent does not seem to be in dispute in any litigation.

I wanted to make sure I wasn’t imagining this, so I checked with The Verge’s Nilay Patel, an intellectual property lawyer by training and a consistent source of solid reporting on patents and other IP issues:

Tweets

The actual issues in the Samsung case involved several  patents covering the overall design and “trade dress” of the iPhone and iPad and three Apple “utility” patents that cover specific software behaviors. One covers the bounceback behavior of screen objects when you try to scroll beyond the edge of the display. A second concerns how the device differentiates between a one-finger scroll gesture and a two-finger move gesture. The third covers tap-to-zoom, which expands objects in the display centered on the point of the tap (think Maps).

Equally strange was the treatment of the notorious “rounded rectangles” argument. Michael Hiltzik wrote for The Los Angeles Times: “The illogic of the patent system is what generates nonsensical verdicts like last week’s jury award. Apple’s allegation that Samsung copied the iPhone with its phones is virtually identical to its allegation that Samsung copied the iPad with its Galaxy tablet computer. In its briefs, Apple describes both of its devices as ‘a rectangular product with four evenly rounded corners, a flat clear face covering the front of the product, a large display screen under the clear surface … and a matrix of colorful square icons with evenly rounded corners,’ etc., and alleges that Samsung copied these ‘distinctive’ features.”

Samsung contributed greatly to this with a post-trial statement that said: ““It is unfortunate that patent law can be manipulated to give one company a monopoly over rectangles with rounded corners, or technology that is being improved every day by Samsung and other companies.” It’s more unfortunate that the claim was a gross exaggeration that was swallowed whole by many writers.

Apple claimed that Samsung infringed on four design patents. The D’677 patent covers the overall design of the iPhone while D’305 covers the layout of icons. These claims were upheld. But the jury rejected infringement claims based on patent D’889, which covers the iPad, and rejected eight of 13 claims under D’087 and which deals specifically with the rectangles-with-rounded-corners design of the iPhone (see the relevant sections of the jury verdict form below.) Corrected–see note at end.

Apple verdict '087

Apple verdict '889

 

 

How did so many get this so wrong? I fear it betrays something ugly about the way tech reporting works–and doesn’t work–these days. Depth, expertise, and reflection are all lacking. So is serious research. If you are going to write about a patent case, it’s a good idea to read the patents in dispute. Reading patents is not a particularly pleasant business. The language is tedious, legalistic, and often deliberately obfuscatory; you want to give the Patent Office the required information while giving away as little as possible to your competitors. But reading the claims, the critical section of the patent, isn’t all that difficult. There are a total of  101 claims for the three patents and they fill about five printed pages. Yet I suspect very few of the people who wrote about the trial actually made the effort. If they had, they would have known that the range of gestures covered was much narrower than has generally been reported.

I’m not sure where the idea that pinch and stretch was at stake originated. It seems to have crept  into the trial coverage at some point and become part of the folklore of the case. And when the jury announced that it had found infringement by Samsung on all three utility patents, a large number of writers seemingly assumed that one of those covered the gesture. In the case of rounded rectangles, Samsung’s obfuscation certainly contributed. So did a general hostility toward the entire patent system in the tech community, including tech writers, which created a readiness to believe in the most absurd interpretation of the outcome.

I’m not minimizing the significance of Apple’s victory in the case (and again, we’ll have to wait for appeals, likely several years’ worth considering the languid pace of the Circuit Court of Appeals for the Federal Circuit, before the matter is settled once and for all.) But while the multitouch gestures covered by the Apple patents are important, there is nothing as critical as pinch-to-zoom and nothing that would prevent an innovative designer from coming up with non-infringing alternatives.

 Note: The original version of this post said the jury had rejected all claims regarding the rounded-corner design. The jury in fact rejected all claims only regarding willful infringement. On the simple question of infringement, the jury rejected a majority of claims, but did accept five regarding the iPhone. The corrected version appears above.

Steve Wildstrom

Steve Wildstrom is veteran technology reporter, writer, and analyst based in the Washington, D.C. area. He created and wrote BusinessWeek’s Technology & You column for 15 years. Since leaving BusinessWeek in the fall of 2009, he has written his own blog, Wildstrom on Tech and has contributed to corporate blogs, including those of Cisco and AMD and also consults for major technology companies.
  • toni

    I believe Microsoft’s Paint also must have infringed Apple’s Rounded Rectangle monopoly by being able to draw a rounded rectangle.

    • http://www.thegraphicmac.com/ JimD

      See what you typed right there? That’s the kind of stupid we’re talking about.

    • http://profiles.google.com/dr.boyd Jonathan Boyd

      Maybe not, but if someone had made icons using that tool, their computer certainly would have.

    • SmaryJerry

      No, but apple was clever enough to design a phone using that tool. HOW CLEVER INDEED.

  • http://twitter.com/hisurfer Robert Linek

    Amen. Great article.

  • http://twitter.com/w_jackson w_jackson

    Thanks steve for putting some sanity back into this discussion.

  • Ilari Scheinin

    Excellent job detailing out the details of the legal case. I also just wrote an article criticizing Samsung’s statement on those rounded corners. It’s trying to put that statement into context with other design details:http://ilari.scheinin.fi/rounded-corners

    • steve_wildstrom

      Nice job. The great thing about trials is that it’s all laid out their for you, not like the usual tooth-pulling that is journalism. But you have to do the work.

  • http://thesoapvox.com ElVox

    And here is the first intelligent reporting on this thing outside the Verge/Gruber/Dalrymple/Armandt group…I can’t believe the level of stupidity accumulating in tech journalism.

    • steve_wildstrom

      Hey, I’m perfectly happy to be in that company.

      • http://thesoapvox.com ElVox

        I would be too :) Thanks for turning on your brain before turning on your computer, tho…it’s a good habit :)

        • Mikael

          You’re a black serial killer. That’s not a good habit.

          • http://thesoapvox.com ElVox

            Uhm…sounds pretty reasonable…I guess I’ll drop the habit…thanks for the feedback, Mikael.

  • Rodney

    How about these rectangles with rounded corners.
    Car license plates, driver license, credit cards or anything else that is made as a rectangle with rounded corners. Hers is another one government security badges. Will the government have to pay Apple for patent violation.

    • steve_wildstrom

      You, and a lot of other people, are seriously missing the point. Has never claimed a patent on rounded rectangles. It has design patents on the general appearance of the iPhone and iPad in which rounded rectangles are one element of the overall design and “trade dress.” One can question the wisdom of awarding design patents, and I do. But they are part of patent law.

      • Walt French

        Actually, closer to trademark law (the Latham Act, IIRC), which seems fitting: companies typically protect things like Wells Fargo’s particular red/yellow signage, the shape of a Coke bottle, etc. Virtually every society recognizes the benefit from excluding low-lifes from debasing a company’s identity or actually confusing consumers.

        Most of us think of a “patent” as meaning a clever invention, while it originally meant “making it known to all” as we say, “patently obvious.”

        • benbajarin

          Great point Walt. I actually think what you say about understanding of patents extends to the understanding of innovation. I think more often than not people mistake innovation with invention.

          I think there is a significant misunderstanding of what it means to innovate.

          • http://profiles.google.com/dr.boyd Jonathan Boyd

            If anyone ever installed this icon pack on Windows 95 their monitor would have violated the Apple patent.
            http://www.files32.com/Database-Icon-Collection-i10847.asp
            “a rectangular product with four evenly rounded corners, a flat clear face covering the front of the product, a large display screen under the clear surface … and a matrix of colorful square icons with evenly rounded corners” 1235 downloads, so I think it’s safe to assume someone did.

            This kind of patent leads to a race to the bottom where any sort of obvious change on an existing product (obvious enough for an icon maker to produce it on their own prior to the patent). I understand that Apple needs to protect their IP but this is just ridiculous. Imagine a company making the same patent but with triangles/rhomboids/circles /irregular shapes. Once all the shapes are patented no-one will be able to make a device using what has been the standard GUI since the 1990s (grid of icons on a rectangular glass screen with rounded corners). That’s what hurts consumers.

          • steve_wildstrom

            See my reply to your earlier post. People have to understand that design patents are very different from utility or functional or process patents. They are much more a sort of trademark. Just because you have a patent on a design that contains a certain element does not mean that you now own exclusive rights to that element. Only its use within the context of that particular design is protected. There are lots of problems with patent law, but it is not idiotic.

          • EducatedToPerform

            Exactly, Steve.

            Design patents are inextricably tied to the device which they are protecting. When determining if infringement has occurred, the potentially infringing device is not compared to the patent, but to the device which was protected. The patent document describes which specific elements are key to the design but the similarity between the products themselves is the key to the success or failure of these cases.

      • Walt French

        The oddity is that supposedly intelligent people would think that law around the world has magically changed and Apple now owns basic geometric shapes, but nobody else has laid claim to squares, ellipses, etc. What could be more moronic?

        • steve_wildstrom

          Microsoft did try to lay claim to windows once, but USPTO wouldn’t let them.

      • BillPosters

        You can’t have it both ways. You “question the wisdom” of awarding design patents, but then tell the previous commenter that he is seriously missing the point? The reason why everyone is questioning design patent wisdom is *precisely* because rounded corners are one of the key catalysts in a billion dollar law suit.

        The specific shape and dimensions of a Ferrari could not be copied by another manufacturer, but the rounded corners can and are found on every sports car. Same with a phone. Also, bounce-back animation is nothing more than easing curves applied to interface elements in motion. Easing curves on animated interfaces is nothing new, and should not be owned by anyone, even as “one element of the overall design”. When a billion dollars is at stake, one element is worth a LOT of money. So I’m afraid to say that Rodney’s comment is spot on, and Apple is now a huge joke, and will lose a lot of customers, myself included.

        • steve_wildstrom

          I expressed my opinion of design patents, but what I think is beside the point. This case had to be decided on the law as it is, not how we might wish it to be. And the law provides for design patents.

          All that said, the design patents did not figure all that heavily in the verdit. Apple lost on 8 of its design 13 claims, include all claims involving the iPad. And recent Samsung products (and other Android devices) have moved beyond the obvious copying of the iPhone.

          It’s the utility patents that really matter, and the bounceback feature is covered by a utility patent. With utility patents, we are indeed talking about very specific functional elements, not overall designs. In the appeals process, I am sure that Samsung will again challenge the validity of the bounceback patents. But as others have found, defending an infringement cases by challenging validity is a steep hill to climb; the presumption of validity, in effect giving the benefit of doubt to USPTO, is a powerful legal weapon.

        • EducatedToPerform

          No, Bill, you completely failed to read or understand Steve’s comment.

          It is perfectly logical for Steve to be able to:

          a) Clarify to the original poster what the design patent actually legally includes (ie not just rounded rectangles)

          AND

          b) To have reservations about whether or not the law is ideal.

          They are NOT inconsistent, at all – please try to apply a bit of logic next time.

    • Guest

      @Rodney Congratulations. Just in case there was any doubt or misunderstanding over Steve’s assertion that people simply don’t check their facts before opening their mouths, you just cleared things up admirably.

    • http://www.acid-product.co.uk Ian Davies

      @Rodney Congratulations. Just in case there was any doubt or misunderstanding over Steve’s assertion that people simply don’t check their facts before opening their mouths, you just cleared things up admirably.

  • http://www.acid-product.co.uk Ian Davies

    Nice work, sir. I think I just found a new regular column to read :)

  • Canucker

    The press reporters were lazy but the comments by Samsung in their reaction to the verdict was pure PR spin. In this they succeeded. They wanted to deflect the stinging conclusion of this trial and misdirected the press by giving them quotable quotes. The fact that this fell on the late evening (east coast) of a Summer Friday also meant that the weekend papers and blogs would be unlikely to delve into depth. Hence, by Monday, there was a feeding frenzy based on poorly researched or highly biased content. There have been some re-examinations and sober thought since but Samsung achieved at least part of their goal in trying to mitigate the impact of the verdict. No one likes to be called a copyist and their defence was more distraction.

    • steve_wildstrom

      With 40 years experience as a spinee, I can say that it is PR folks to spin and reporters’ job to resist being spun.

      • Canucker

        Yup, I’m not actually blaming Samsung. Both Apple and Samsung have strong PR departments. It’s when you see this garbage from the Guardian that it makes you wonder…. http://www.guardian.co.uk/commentisfree/2012/aug/28/apple-rot-starts-with-samsung-lawsuit-win

        • steve_wildstrom

          Yeah, Michael Wolff has an interesting approach to journalism, where it is better to be provocative than right.

          Interesting thing about Apple is that the PR folks don’t do much spinning. Mostly, they don’t say anything at all. But Steve Jobs was the greatest spinner of all time–that’s what the famous reality distortion field was about. Phil Schiller is pretty good too.

        • BillPosters

          The Guardian article is a good read and interesting perspective. Makes me wonder if folks have ever seen garbage to label this as such.

    • Walt French

      Samsung got help from sloppy reporting of Google’s presser, too. At least one publication with a tech name claimed Google noted that core Android was not affected. Actually, Google correctly said that MOST of the claims didn’t affect core Android functions.

      But even that is a bit of a giggle: their own lawyers claimed in a German Motorola-v-Microsoft, that “it only takes one bullet to kill.” Google’s official position is still Step 1 Denial, while most of the pro-Google blogosphere has moved on to Step 2 Anger, and a few are hoping for licensing, having hopped to Step 3 Bargaining.

  • noname

    Google has been using the media as a weapon against patents
    because they don’t have any other alternative.
    That is why Samsung leaked documents not
    pertinent to their trial to muddy the issue.
    Google has even admited to paying people to cover
    in the Oracle case. One of the idividuals named
    wrote that Apple didn’t innovate anything with iphone
    for artechnica

  • http://twitter.com/FlopTech FlopTech Engineering

    Re: “Depth, expertise, and reflection are all lacking. So is serious research.”

    We are so glad you said this. Much tech reporting has degenerated into re-blogging and spinning stories to exploit specific audiences. Many tech reporters write with TL;DR apathy. (Where “L” stands for “Lazy” and “R” stands for “Research”: Too Lazy; Didn’t Research.)

    Thanks Steve!

  • http://post404.com/ Randall “texrat” Arnold

    Yup. My only comments regarding rounded corners have been aimed at those defending them as a patentable item: http://post404.com/2012/08/tech-talk-for-august-2012/

    I hear you on the tech journalism thing too. I’m trying hard not to succumb. But it’s hard, seeing that willful sloppiness leads to more views…

  • Techpm

    Excellent analysis and fact finding. This is what journalism should always be about.

  • http://profiles.google.com/dr.boyd Jonathan Boyd

    How is “a rectangular product with four evenly rounded corners, a flat clear face covering the front of the product, a large display screen under the clear surface … and a matrix of colorful square icons with evenly rounded corners” any different than any monitor I’ve used since Win3.0? Maybe not the icons with rounded corners but I’m sure I can find a xp theme that has it. (How about windows 95 ;)
    http://www.fileheap.com/software-business-icon-collection-download-15966.html).

    • http://profiles.google.com/dr.boyd Jonathan Boyd

      Anyone who installed that commercially available icon pack would have represented prior art invalidating Apple’s patent.

      • steve_wildstrom

        This incidentally raises an important point. Merely using an infringing product does not create any liability save in some exceptional cases. The maker of the product infringes, not the customer.

    • steve_wildstrom

      A design patent consists almost entirely of drawings, and the devices drawn are recognizably an iPhone. The patent covers the entire appearance of the device, not any particular feature, though in a lawsuit you have to specify what the copying consists of. No one would claim that windows screen icons either infringed or constitute prior art, not that prior art is all that meaningful a concept in a design patent.

      • DaveK

        >”The patent covers the entire appearance of the device”

        It does? I thought trade dress patents covered only non-functional parts of the design. It appears that in your comments, depth, expertise, and reflection are all lacking!

        • steve_wildstrom

          I’m not sure I follow the distinction between “appearance” and “non-functional parts of the design.” I was trying to avoid writing patent-ese, a strange and largely incomprehensible language.

      • Ismael Del Toro

        It is so stupid to think that everyone here is trying to look like geniuses without ever going to the basic.

        Before iPhone, all phones had the combination of black and gray of colors with buttons lit in white. Almost all phones had bezels and screen (touch or not) totally different from iPhone since you can actually feel the gap between the bezel and screen. iPhone was unique in sense that it was pure glass edge to edge. The only thing not flat is the home button.

        Only stupid people will tell me that iPhone has not been copied. That they never had the right to claim what they claim.

        Samsung is the only product I saw which copies almost edge to edge flat surface glass of iPhone.

        HTC and others were winners to have flat surface but the total look is different from iPhone.

      • Ismael Del Toro

        Samsung, after copying and ruining Sony, is after Apple now. They are trying to copy the strategy they have made against Sony.

        Where in the world can you see a copycat Samsung, I mean company, which has the guts to copy even the design of iMac Mini?

        There is a blatant copying going on in Samsung’s unethical world, that is being patronized by people who wants pirated music that’s why they hate iTunes. No wonder they try to support a pirated company.

        Samsung, which I once in my life, has been best in designing against Nokia. What happened???

  • Mike

    Mr. Wildstrom, was there discussion during the trial that the “pinch-to-zoom” feature was (or was not) covered by any of Apple’s asserted patents? All due respect to Mr. Patel, but as I read claim 8 of the 7,844,915 patent it seems entirely plausible that this could cover a pinch-to-zoom feature.

    • steve_wildstrom

      I did not attend the trial (I live on the other coast) and I don;t have access to a transcript. Based on the accounts I have read, I don’t think Apple made any claims at the trial with respect to pinch to zoom. I think that if they had wanted to, they would have asserted the ’826 patent, which is a much stronger claim than claim 8 of ’915. That claim actually deals with the two-finger drag though it is written in the typically obscure language of patents.

      • Mike

        I have to disagree about the language of claim 8 – as Kevin Kettler points out, it covers “scaling the view associated with the event object”. Claim 8 seems as though it could cover a pinch-to-zoom feature.

        Certainly if Apple had admitted (during trial or during prosecution of the ’915 patent) that claim 8 did not cover a pinch-to-zoom feature, then the tech media would be wrong to report something to the contrary.

        The premise of the article seems to be shame on the tech media for not checking their facts, yet you yourself do not seem to know for sure whether the pinch-to-zoom feature is covered by the ’915 patent, relying only on your personal interpretation of the claim and the word of Mr. Patel.

        For the record I found your article while trying to figure out for myself whether or not the pinch-to-zoom was in fact covered.

        • EducatedToPerform

          Something being ‘covered by’ a patent does not mean that that is what the patent is exclusively for, or how the patent is defined.

          An important distinction which you seem to be unable to grasp.

  • Kevin Kettler

    Steve, Claim 8 of 915 deals with pinch to zoom. “A machine readable medium storing executable program instructions which when executed cause a data processing system to… scale the view associated with the event object based on receiving a plurality of input points in the form of the user input.”

    • steve_wildstrom

      Are you looking at the same patent I am (specifically the as-granted patent rather than the application)? Claim 8 of ’915 reads in its entirety:
      8. A machine readable storage medium storing executable program instructions which when executed cause a data processing system to perform a method comprising:
      receiving a user input, the user input is one or more input points applied to a touch-sensitive display that is integrated with the data processing system;
      creating an event object in response to the user input;
      determining whether the event object invokes a scroll or gesture operation by distinguishing between a single input point applied to the touch-sensitive display that is interpreted as the scroll operation and two or more input points applied to the touch-sensitive display that are interpreted as the gesture operation;
      issuing at least one scroll or gesture call based on invoking the scroll or gesture operation;
      responding to at least one scroll call, if issued, by scrolling a window having a view associated with the event object; and
      responding to at least one gesture call, if issued, by scaling the view associated with the event object based on receiving the two or more input points in the form of the user input.
      I’m using the Google Patents version for readability, but the USPTO database version is the same.

      • Mike

        Key wording (as I see it) is the gesture part of “scroll OR gesture” then “responding to at least one gesture call, if issued, by scaling the view associated with the event object based on receiving the two or more input points in the form of the user input.”

        The specification of the ’915 patent describes examples of “gestures” which includes: “The gesture operations include performing a scaling transform such as a zoom in or zoom out in response to a user input having two or more input points.” Sounds very much like pinching to zoom in or out.

        • EducatedToPerform

          Sounds like someone isn’t able to distinguish an example of something with that something.

      • http://www.facebook.com/daniel.tosello Daniel Tosello

        The problem is, from a technological point of view, claim 8 of ’915 can be interpreted in a much broader way than just ‘pinch to zoom’. It also encompasses all potential ‘(n) finger scrolling’ AND all potential ‘(n) finger gesture’) functions, provided the data is read by an ‘executable program’ stored on a ‘machine readable storage medium’… such as (for example) bus, RAM, or CPU cache. Or disk, i guess.

        This patent potentially describes not the ‘pinch and zoom’ action, but an entire prerequisite set of functionality required to allow the machine in question to have *the potential* to interpret that action and all others like it all.

        • EducatedToPerform

          Indeed. Which is different to ‘pinch to zoom’. As he stated.

    • Alan

      Nilay at The Verge has a good explanation of this – what is patented is the device telling the difference between a single finger scroll and multifinger gesture (such as pinch to zoom), but not pinch-to-zoom itself. Subtle but important difference.
      http://www.theverge.com/2012/8/30/3279628/apple-pinch-to-zoom-patent-myth

  • David Landry

    You turn to Patel for “solid reporting on patents and other IP issues”? Has Patel ever metioned anything about the new IP laws coming into affect Sept 16th? http://www.patentspostgrant.com/lang/en/2012/08/apple-jury-confuses-obviousness-analysis

    Solid reporting my butt.

    • steve_wildstrom

      I don’t know about about Patel, but I am aware of the changes. However, they don’t have any bearing on a trial that has already been held.

      • David Landry

        No, but they have a bearing on all future cases Apple might want to make against ‘infringers of weak patents’ … Instead of reporting that Apple may have a harder time in the patent wars from now on he is advising that everyone should just bow to Apple and pay whatever they ask.

        • EducatedToPerform

          And that’s relevant to a decision already made, how? Now, remind me, is this article about the decision already made, or guesswork on the future shape of the law?

          ….

  • S

    Finally, a report that makes sense. Speaking as one of the ‘ordinary folk’, this is the first report on the case that seems to have no glaring inconsistencies or gaps in content. It’s succinct, informative, conclusive, and free of prejudice on either side. Thank you.

  • Pingback: Apple vs Samsung patents not discussed | Trial

  • Bill A.

    “nothing that would prevent an innovative designer from coming up with non-infringing alternatives.”

    But that’s the the billion dollar question, isn’t it? As with any legal question, you can never tell ahead of time and with absolutely certainty that something you come up with is non-infringing. The vast majority (perhaps all) software patents are bright ideas dreamt up by bright engineers, but which literally only cost companies maybe a few hundred dollars in employee time to devise and a few thousand in legal fees. But the liability created by these patents reaches into the billions!

    The question isn’t whether, with some effort, you can navigate the patent minefield. The question is whether we should be requiring people to jump through these hoops to get around patent monopolies which produce a net economic loss (as almost any economist who has _empirically_ studied the industry will tell you).

    Patents merely feed people’s romantic fantasies about product innovation. They’re simply not needed with software, period, and yet software patents are the most easily acquired because (ironically) software is the one area where anybody can get started “innovating” with zero capital expenditure. And because of that, people vehemently defend them because–like the lottery–they fantasize about being the next Bill Gates, Mark Zuckerberg, or Steven Jobs. None of who, BTW, found much use for patents until they were already at the top of their markets.

    • EducatedToPerform

      Because you saying ‘they’re simply not needed, period’ is an authoritative and evidenced position which we should therefore all agree with?

      I personally find it absurd nonsense. If I had spent years creating an interface which was innovative and original I would most definitely want to protect it. Indeed, if I couldn’t protect it I would be very unlikely to spend as much time or effort on it.

      All of Bill Gates, Mark Zuckerberg and Steve Jobs are only able to maintain much of their market dominance through patents, which OF COURSE happens mainly after they achieve success and widespread adoption of their ideas (and subsequent copying).

      You don’t find a ‘use’ for a patent until people start trying to copy it, that’s just basic logic.

  • DaveK

    How ironic that the original version of your own article should display the same failings that you accuse others of.

    As for tap-to-zoom, how is that any different than clicking to zoom, as seen since e.g. Netscape 3′s implementation of VRML back in the mid ’90s?

    • Narcogen

      Those aren’t the same failings at all. He’s faulting the tech press for failing to report on the verdict accurately because they either haven’t read the verdict, or haven’t read the relevant patents.

      You’re faulting him for not placing himself in the position of the jurors and rendering a judgement against the Apple “click to zoom” patent by claiming prior art.

      The author here is just calling for minimally competent reportage. You’re asking for commentary and analysis that agree with your position.

    • Zeke

      “As for tap-to-zoom, how is that any different than clicking to zoom…?”

      The difference is that it happens on a touch screen. The results appear to be the same to an external observer, but the technological process is quite different, as it is with the whole suite of touch screen gestures Apple invented. Tell me, if there was prior art, why didn’t the present day cell phone designs of 2006 reflect all of these “well known” and “commonly understood” ideas?

      As for your earlier comment about rectangles with rounded corners not being patentable, you’ve fallen for a red herring from Samsung. It’s the totality of the image when one looks at the phone that conveys “trade dress”. If Honda had copied the 1957 Chevy body and interior design, but slapped a honda logo in place of the Chevrolet logo you’d be arguing that you can’t patent curved sheet metal. That’s just as silly an argument when it’s applied to present day cell phone design.

      • http://www.facebook.com/brad.ballew.5 Brad Ballew

        “It’s the totality of the image when one looks at the phone that conveys “trade dress”. If Honda had copied the 1957 Chevy body and interior design, but slapped a honda logo in place of the Chevrolet logo you’d be arguing that you can’t patent curved sheet metal.”

        The problem with this is that a car’s design is much more complicated. As far as the basic structure is concerned there is a great variety of curves at varying degrees around the whole of the vehicle. Look at how the area of the tail lights and headlight extend out to something of a point to the wave of curves going across the hood: http://en.wikipedia.org/wiki/File:1957-chevy-bel-air-chevrolet-archives.jpg
        There is a lot of art that goes into a automobile’s design. The physical design of the I-Phone and I-Pad are incredible generic no matter how you slice it.

        Technology follows an evolution and cell phones have been evolving over the years. More companies than just Apple had the bright idea of smart phones that were one big touch screen. The rounded rectangle can be seen in plenty of concept art and actual devices before the i Phone was brought to the market. This generic physical design was the next step of evolution for phones across the board, but only Apple was pretentious enough to try and patent it. The gestures they claim to have developed are just as ridiculous. Are you telling me that if Jeff Han decides to use the technology he created and showcased at TED a whole year before Apple even announced their I Phone, that he will be infringing on their patents? http://www.youtube.com/watch?v=UcKqyn-gUbY

        • steve_wildstrom

          Han would very likely be infringing on someone’s patents. Apple neither has nor claims a fundamental patent on multitouch interfaces. Patents on various aspects of the interface arte held by a lot of different companies (Microsoft owns a fair chunk of them, but Apple and Microsoft have had an extensive patent cross-licensing agreement since 1997.) But Han himself holds nine patents several of them having to do with multitouch sensing.

          • http://www.facebook.com/brad.ballew.5 Brad Ballew

            When I was talking about Han’s technology I was also referring to the gestures he had developed for his system that are remarkably similar to the type of gestures that Apple has patented. I would argue that the pinch to zoom was included in the trial even if they weren’t vocal about it and as you can see in the video I pasted, Han is constantly using this gesture. This is well before the I Phone is even introduced. There have been a few different companies working on multi touch technology long before the I Phone came to fruition. I think the idea that Apple was the first one to come up with the gestures that they patented considering all the people working in this area is ludicrous.

            The problem that many people including myself have is that Apple is patenting things that just seem a bit silly. Did Han patent his gestures? I don’t know this for sure, but I would be inclined to think that he didn’t. That’s just not something that seems reasonable to most people. Also, did he try to patent the glass square touch screen? Probably not.

            Apple may have been allowed to patent these things but that doesn’t mean that it’s right. We are in desperate need of patent reform, because once you start down the road of allowing people to patent such basic designs and simple gestures, where does it end? People will see this verdict and know that the system is overly flexible and easy to take advantage of. This will only lead to more and more lawsuits down the road which is in no way can be a good thing for the tech industry or the consumer.

          • steve_wildstrom

            The Han video is interesting, but the gestures he uses have nothing to do with the patents in dispute in the Samsung case. I don;t know how many times I have to say this, but that case does not involve pinch-to-zoom. Double-tap to zoom, yes, but not pinch and stretch. Had dopes have some patents covering touch interface technologies, but I have not had a chance to read the claims.

            As a legal matter, what’s “right” is what the law says. The tech world doesn’t generally like software patents but neither Congress nor the Supreme Court has shown any inclination to change things.

          • steve_wildstrom

            The Han video is interesting, but the gestures he uses have nothing to do with the patents in dispute in the Samsung case. I don;t know how many times I have to say this, but that case does not involve pinch-to-zoom. Double-tap to zoom, yes, but not pinch and stretch. Had dopes have some patents covering touch interface technologies, but I have not had a chance to read the claims.

            As a legal matter, what’s “right” is what the law says. The tech world doesn’t generally like software patents but neither Congress nor the Supreme Court has shown any inclination to change things.

          • imaginarynumber

            Opera had double tap to zoom on Windows Mobile. From memory I think that this predated Apple’s patent, I could be wrong though

        • Zeke

          In January 2007 Apple had a working prototype of the first iPhone. When Jobs announced the iPhone he also said, “And boy, have we got it patented.”
          And then there’s this…

          http://www.idownloadblog.com/2012/07/24/apple-multitouch-patent-1995/

          Today, another patent grant has surface in the United States Patent & Trademark Office’s (USPTO) database that Apple bought from a Canadian inventor, pressumably for a significant fee… Engadget first discovered today’s patent titled “Method for providing human input to a computer” that belongs to Timothy R. Pryor who originally filed it back in 1995. And this is in addition to another transfer of intellectual property which occurred in March 2010.

  • Pingback: Pinch Me… | Corpus Scriptorum Crumbum

  • Bill Bigge

    Arguments over exactly what was disputed and patented aside, I can’t help thinking that there is a fundamental problem with any patent involving gestures on a multi-touch screen. The issue is two fold, firstly the use of gestures is not new and as another poster pointed out has been implemented in browsers already. Secondly, multi-touch screens were not invented by Apple, and were invented to do exactly what they say – enable user input to a computer with multiple fingers (Which a keyboard already does, but with some obvious added benefits) Therefore any multi-touch screen gesture is surely just an extension of existing techniques onto a piece of technology designed precisely for that purpose.

    To give an overly simplistic(!) analogy – imagine you invent an omnidirectional wheel (think of the vehicles in the film iRobot) which, when used in a vehicle allows the vehicle to perform maneuvers not possible with a conventional wheel – then Ford comes along, buys your wheels and puts them on its car and patents “performing [a specified] maneuver on a mobile vehicle equipped with omnidirectional wheels in order to enter a parking space”

    They are just patenting a specific use of a particular technology that was designed to facilitate these types of use.

    • EducatedToPerform

      So, Apple didn’t invent Multitouch, but who did?

      Fingerworks.

      Who acquired Fingerworks?

      Apple.

      When you acquire a company, do you also acquire their technology / patents?

      Yes.

      • Pete Austin

        Bell Labs and University of Toronto had multi-touch ten years before Fingerworks “invented” it.

        • EducatedToPerform

          Not on a capacitive touch screen

          • Kevin Darling

            Bell Labs invented a capacitive multi-touch screen around 1982. Fingerworks came along 16 years later and never did anything on a screen. Their research was all on opaque surfaces.

          • EducatedToPerform

            I didn’t say Fingerworks did anything on a screen. I said Apple acquired their technology and patents. Which they did.

            The capacitive multi-touch Bell Labs created didn’t include the gestures which Apple patented.

          • imaginarynumber

            Erm… does Jeff Hann showing the world pinch to zoom prior to the Apple applying for the patent not count for anything?

          • EducatedToPerform

            Only if the implementation was the same.

            Was it? No.

          • imaginarynumber

            Sorry ETP, not trying to be obtuse, but why is Jeff Hann showing the use of two fingers to perform a task on a screen not relevant, whereas opera having a double tap to zoom on a resistive screen is mentioned in the patent application.

            I might be wrong but I believe that you are suggesting that prior art should be excluded unless it can be shown to have existed on a capacitive screen. If that were the case wouldn’t the Fingerworks’ patents also be irrelevant?

  • Chris

    Steve, you’re just another apple lacky. All of you’r accusations have been debunked in the comments.

    Reading your website I note that as far back as I have looked (month an a half), you have not covered a single tech piece on any Android based company, nor android itself.

    A very poor technologist indeed.

    • Walt French

      Chris, I’ve gone through all the comments here, and I don’t see a single one that actually debunks more than mere details of Steve’s piece. Most tragically display the very ignorance of facts that the article bewails.

      But they actually make assertions with some claim to their own logic. So your comment is the most critical in the utter absence of supporting logic.

      Congratulations for being the best at … something.

  • Pingback: Patenty na pinch to zoom i prostokąt z zaokrąglonymi rogami – wszystko co musisz wiedzieć na ten temat | Makowe ABC

  • Vince

    the rounded rectangles was a “trade dress ” assertion not a patent assertion; the comments about the absurdity of owning a 100 yr. old industrial design standard still apply

  • Jhaemus

    The design (D’677) that Apple describes is not a new design. See Patent D337569 for prior art. This design has the same design elements as D’677; rounded corners, a screen-centric touchscreen, touch input, and looks similar to both iPhone & Galaxy devices. It was issued in 1993. If 14 years have passed, then anyone can use this design, correct? Can Apple patent a design that has previously been patented but has expired?

    • steve_wildstrom

      From the UPTO Manual of Patent Examining Procedure, Section 1500, Design Patents: The standard for determining novelty under 35 U.S.C. 102 was set forth by the court in In re Bartlett, 300 F.2d 942, 133 USPQ 204 (CCPA 1962). “The degree of difference [from the prior art] required to establish novelty occurs when the average observer takes the new design for a different, and not a modified, already-existing design.” 300 F.2d at 943, 133 USPQ at 205 (quoting Shoemaker, Patents For Designs, page 76). In design patent applications, the factual inquiry in determining anticipation over a prior art reference is the same as in utility patent applications. That is, the reference “must be identical in all material respects.” Hupp v. Siroflex of America Inc., 122 F.3d 1456, 43 USPQ2d 1887 (Fed. Cir. 1997).”

      The ’569 patent was cited in the ’677 application, so the examiner was undoubtedly aware of it and felt the designs were significantly different, not surprising since they are for different types of device.

      I think the fact that the ’569 patent expired in 2007 means that anyone has a right to copy the design (subject to copyright and trademark protections which may remain in force) but I believe prior art is prior art regardless of the time elapsed. I’d defer to a patent attorney on this.

  • Danny

    “So did a general hostility toward the entire patent system in the tech community, including tech writers…” – I welcome and cheer all the hate for the entire patent system. It’s a wonderful thing that shows how humanity is still not lost and doomed.

  • George Low

    Great article. I see the points about the patent and accusation is not specifically on “rounded corner” and “pinch to zoom”, but it seem to suggest that Apple claims are more than that – in short, it is not speficially/ only on those points, but DO cover those and in fact more.
    My interpretation may be wrong, can someone enlighten me pls?

    • steve_wildstrom

      Two separate issues, because one involves a design patent and the other a utility patent. Apple asserted a design patent on the overall appearance of the iPhone, which includes the rounded corners. The jury concluded that some Samsung phones infringed on this patent while rejecting a similar claim for the iPad.

      Apple asserted three utility patents covering aspects of the iOS user interface. Specifically, these concerned double tap to zoom, how the screen behaves when the user attempts to scroll beyond the edge, and how the device distinguishes between a one-finger scroll gesture and a two-finger drag gesture. Although Apple has a limited patents covering aspects of pinch-to-zoom, it did not claim infringement on this.

  • http://www.facebook.com/donald.m.kraig Donald Michael Kraig

    You write that among tech reporters, “Depth, expertise, and reflection are all lacking. So is serious research.” I regret to say that this is not limited to tech reporting. In the thrill of getting things out first, reporters have abandoned all pretense of journalistic tradition and ethics while hiding behind the screen of calling what they do “journalism.” They loudly proclaim they are “fair and balanced” when they should be honest and objective.