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.
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:
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.
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.