Patents out of control

by on June 30, 2011 at 10:50 am in Current Affairs, Law, Web/Tech | Permalink

Apple has been granted an incredibly broad patent giving them monopoly rights to gesture recognition on multitouch displays.

“It covers the basic user interface concept of moving touch-screen content with multitouch gestures–not just one particular way to programmatically recognize one particular gesture for this purpose, but any or all ways to do so,” Mueller said. “This patent describes the solution at such a high level that it effectively lays an exclusive claim to the problem itself, and any solutions to it.”

Patents are supposed to increase the progress of the useful arts. But does anyone really believe that gesture technology would have been left undeveloped without the prospects of a 20-year monopoly?

Brian L O'Neal June 30, 2011 at 11:15 am

Personal opinion – patents are not as vital for interfaces as it is for machinery. The idea of branding did not exist in the 1900s, so a cheap knock-off was much more of a real threat. I can’t imagine the preponderance of consumers preferring a non-name, untested pinch interface to Apple products these days.

Justin Bassett June 30, 2011 at 11:49 am

It’s not the no-name, untested ones Apple got this patent for. It’s for the Android and WP7 devices that they will now try to license it to. It’s likely that the patent will be killed in a court though.

dirk June 30, 2011 at 11:22 am

If this is true, that’s pretty horrible. I’m in favor of violent revolution to overthrow our corporatocracy. Anyone else?

korbonits June 30, 2011 at 11:24 am

Essentially, a lot of legal fees are going to be had all over the boards.

If Congress would let the United States Patent and Trademark Office (“USPTO”) actually use excess user fees, the patent backlog could be reduced, and, for example, this touchscreen patent could have been granted much earlier.

Scott F June 30, 2011 at 11:30 am

Um, guys, they allow patents on GENES. Why are surprised at this?

Justin Bassett June 30, 2011 at 11:52 am

People complain about that, but it actually makes sense. It’s extremely expensive to locate genes that control for specific phenotypes, but cheap to copy the resulting therapies. The patent is system is designed to protect the initial investment of time and money when the copy is cheap.

Coming up with the “idea” of a multi-touch interface isn’t exactly expensive – everyone has been doing it for years.

Andrew' June 30, 2011 at 12:03 pm

It’s only expensive to locate genes now. Allowing patents on them may create a perverse incentive to waste money using current technology when people should be developing better and cheaper gene sequencing techniques.

Andrew' June 30, 2011 at 12:33 pm

Another thing, it seems pretty easy to keep your knowledge of a gene as a trade secret. It may be problematic to match a gene sequencer to a gene targeting company, but the problem with patenting that knowledge is that you then cannot determine it for yourself, you have to deal with the sequencer as a monopoly supplier.

Matt Waters June 30, 2011 at 6:34 pm

There’s a lot of misunderstanding about patentable genes. Genes found in nature can’t be patented because nothing found in nature can be patented. The genes which are patented aren’t found in nature because they have to basically be produced. If the process and the new product meets the novelty threshold (not in prior art and not obvious from prior art), then they’re patentable.

If the patent incentives produce a new gene which could somehow cure a disease or dramatically increase crop yields, I would say the 20-year monopoly was worth it. The issue is that the USPTO has the incentive to approve patents and things like multitouch interfaces are clearly not nonobvious.

mulp July 1, 2011 at 12:36 am

Sorry, but the PTO ruled a gene indicating a condition qualifies as a process patent – ie., if you have genetic defect Q and this increases your odds of a specific disease by 10%, then detecting that gene is a process for determining that 10% higher risk, so detecting gene Q requires a licence to use the process patent. Having the gene does not violate the process, but sequencing a genome and reporting the presence of Q requires a licence. The firm with the process patent will not license it, so reporting Q is going to be a violation of the patent.

The landmark case involves Myriad Genetics, the gene BRCA1 and BRCA2, As I recall, Myriad threatened taking the PTO “to court” to get the patent, and the PTO action was subject to a lot of debate. But until Myriad enforced its patent, refused to license them under any terms, and charges something like $5000 for the test, patents on genes had no impact, with cross licencing the norm. See more on Myriad at
http://www.aclu.org/free-speech-womens-rights/aclu-challenges-patents-breast-cancer-genes-0

Chuck June 30, 2011 at 11:31 am

I’m an engineer in semiconductors, and I read eagerly an article about patent reform and was sad to see it was just about how the office is funded.

That’s a big deal I’m sure in some regards, but in terms of the original purpose of patents, increase progress in the useful arts, there is a need for a MAJOR overhaul to intellectual property, imho.

corporate_serf June 30, 2011 at 12:52 pm

What’s intellectual property?

Joshua June 30, 2011 at 11:36 am

This sounds pretty stupid and crazy. It seems like they are paranoid about android, and hope to use patent law to challenge them, as they’ve done to other iterations of open source software (e.g. h.264 vs. .ogg)

Adrian Ratnapala June 30, 2011 at 1:42 pm

It ain’t just open source that’s the victim. In fact, Android is barely open source itself.

MyName June 30, 2011 at 4:10 pm

No one knows what Apple will want to do with this. It’s just as likely that they want to keep other companies from trying to roll them with a patent (like Oracle is trying to do to Google on Android) as anything else. I’m not saying they won’t go after Google, but it seems unlikely given the history the first time they tried it against Microsoft in the 80s.

DKN June 30, 2011 at 6:12 pm

Apple has ALREADY launched a patent war on Android.

http://www.zdnet.com/blog/btl/apples-htc-patent-suit-can-it-derail-googles-android-devices/31427

That war is ongoing. This absurd patent will likely open a new front in that war. And given the breadth of the claims this is a powerful (but undeserved) new weapon for Apple.

The PTO is a disgrace and issues overbroad garbage patents like this all the time.

Careless June 30, 2011 at 8:49 pm

Not just HTC, they’re also after Samsung. So Samsung sued them to get them to tell them about their upcoming products so they wouldn’t be copying them.

DK June 30, 2011 at 11:36 am

The whole patenting thing has long become completely ridiculous and detrimental to the societal progress. Scrapping it altogether would be the best reform possible in the short term.

Rahul June 30, 2011 at 11:48 pm

And while we are at it can we get rid of excessive book copyrights too?

David June 30, 2011 at 11:47 am

This patent is absurd. The Wikipedia page on multitouch systems catalogs a number of implementations of multitouch that predate Apple’s: http://en.wikipedia.org/wiki/Multi-touch

“Microsoft’s table-top touch platform Microsoft Surface, which started development in 2001, interacts with both the users touch and their electronic devices. Similarly, in 2001, Mitsubishi Electric Research Laboratories (MERL) began development of a multi-touch, multi-user system called DiamondTouch, also based on capacitance but able to differentiate between multiple simultaneous users (or rather, the chairs in which each user is seated or the floorpad the user is standing on); the Diamondtouch became a commercial product in 2008.”

Justin Bassett June 30, 2011 at 11:55 am

The patent is actually the property of Fingerworks (the first developer of this technology) who Apple bought in 2005 with the sole purpose of filing and exploiting the patent. Genius, if ask me. Malicious and underhanded, but genius.

Andrew' June 30, 2011 at 1:26 pm

The (alleged) purpose of patents is to incentivize actual production. So, to go patent-shopping so you can squat the technology against others who are already producing variations turns the concept on its head.

albatross June 30, 2011 at 3:17 pm

From my little part of the tech world, patents are about 99% of the time a force against innovation, rather than for it. Cross-licensing agreements by large companies create a kind of barrier to entry against small companies, patent trolls hit up people actually doing something useful for fees on patents that nobody but the patent examiner ever even read, and people routinely do less efficient, less smart things to avoid getting caught in patent quicksand.

I can’t speak for the rest of the world–perhaps patents really work well in some other areas. But in cryptography, they seem like an innovation-stifling disaster.

MyName June 30, 2011 at 4:11 pm

Software patents don’t even exist in many countries, and that’s the bigger culprit than physical inventions as far as stifling innovation goes.

Theodore June 30, 2011 at 3:24 pm

To be fair, what was Apple’s alternative? Let someone else exploit it and make untold millions / billions off them when they come out with the super-secret products they had in the pipeline?

Andrew' June 30, 2011 at 3:29 pm

We aren’t talking about Apple. They have to play the game by the rules they are given. We are talking about the people who make the rules.

Theodore July 1, 2011 at 6:33 am

Justin’s comment certainly appeared to be disparaging Apple in particular. The people who make the rules may indeed be “malicious and underhanded” as well, but more likely they simply didn’t understand the perverse incentives.

nibs June 30, 2011 at 3:51 pm

Your comment makes no sense – products are already released from all major touch device manufacturers that use multitouch. That is the entire argument here as far as I’m concerned. When something is ubiquitous, can it be patented?

There are no untold millions/billions to be made, because the patent is already commercialized.

As far as I’m concerned, this will be another case of everyone pays Apple x dollars a year to license multitouch, and Apple pays everyone else y dollars to use their smartphone technology, and in the end everyone ends up roughly around even, but with a ton of resources spent on legal fees along the way.

MyName June 30, 2011 at 4:14 pm

The comment makes perfect sense, especially when you realize that Google is already getting sued by Oracle over their use of Java in Android. Smart phones are the big growth market right now in tech, and there are plenty of companies (useful or patent trollers) who would be willing to sue Apple in order to make them pay a licensing fee.

I agree with you about the waste and stupidity, but that’s more or less the nature of the law right now.

Andrew' June 30, 2011 at 6:34 pm

Maybe when a patent is sold/purchased it needs to be reviewed in some way.

Dan H. July 1, 2011 at 1:43 am

They do it for a perfectly valid reason (from their perspective). Patents are becoming corporate weapons to be used against smaller companies trying to enter the market.

Apple and Nokia and HTC can have a big circle-sue betweenthemselves, which ultimately costs them nothing except the maintenance of a legal department.

But if you’re a startup and you haven’t built up your own arsenal of patents you can use to create a counter-sue deterrent, you’re operating at a big disadvantage. Technology patents are a real minefield. Every technology company now has to spend a LOT of money on lawyers, just to clear their patents and make sure they aren’t infringing on anyone else’s.

I work in engineering for a large technology company, and there is always pressure on the engineers to look for patentable concepts during the course of software development. We’re given pretty good bonuses if one of the concepts we come up with makes it to pending status. Not granted, mind you. We get the bonus so long as the patent office accepts it.

The purpose of these patents doesn’t appear to be to protect products from intellectual property copying, but to just occupy as much space in the technosphere that hasn’t already been claimed by some other company’s useless patent.

If you’re a small company, this is a real threat to your ability to compete with the big boys.

Theodore July 1, 2011 at 6:42 am

Not quite the case in 2007, when the patent was applied for, let alone whenever their 2009 patent was applied for. The assertion was that Apple purchased Fingerworks way back in early 2005 with the purpose of exploiting multitouch patents, when their ultimately massive profits from the iPhone and iPad were still distant hypotheticals.

efp June 30, 2011 at 11:52 am

I wonder how much Apple stock the boys at the patent office just bought.

Justin Bassett June 30, 2011 at 11:56 am

Or were given.

efp June 30, 2011 at 11:57 am

I’m going to patent a method of wireless communication using acoustic waves modulated by variable tension membranes, deformable cavities, and adjustable apertures.

albatross June 30, 2011 at 3:13 pm

I can’t hear you, what did you say?

Clark June 30, 2011 at 11:57 am

It is ridiculous however with patent wars pretty common all the large companies do this. The problem with the patent system is that you’d think it would protect small companies but it can’t due to high legal costs. So effectively it just products the large Fortune 500 companies from new companies entering the market.

That said both Google and Apple reportedly are pushing for significant patent reform. I hope that at least the computer industry gets significant patent reform since it’s “time frame” is so much quicker than most other industries. Using the same timeframe for a patent in that industry is pretty ridiculous.

E June 30, 2011 at 12:18 pm

It won’t provide Apple with as much of an incumbency as one might think. First, it’s a fairly specific patent. It covers the multitouch interface in a narrow way. The big manufacturers will develop a work-around. See: http://www.youtube.com/watch?v=lxGpoc5HRYc

Second, it’s unlikely we will be using touch screen smartphones for that much longer. The interfaces currently in the the pipeline deal with voice recognition, and few years after that, heads up displays. The actual smartphone itself is destined to become a paper-thin, flexible display that you carry in your pocket–like a wallet with a modem. You will interact minimally with it.

The only people using clunky touchscreen smart phones in 2018, will likely be the poor (think Cricket).

Lemmycaution June 30, 2011 at 5:10 pm

I agree. This patent just deals with manipulating a portion of a web page with touch while leaving the rest of the page the same. Like manipulating a map within a search result page while the rest of the search result page isn’t changed. I don’t even think iPhones do that now.

jhn July 2, 2011 at 10:16 am

iPhones do this today. Map results for instance.

Sean Brown July 1, 2011 at 6:19 pm

How is this nonobvious? Also, the guy on the video is very kind in saying “this is easy for a company like Google or Microsoft…you could just have it so you can’t interact with the frame content independently.” Wow, that’s very nice of him to allow.

Pedro d'Aquino June 30, 2011 at 12:18 pm

Nilay Patel, lawyer and writer for the tech news website This is My Next, says the patent is actually must smaller in scope: http://thisismynext.com/2011/06/22/apple-granted-patent-webpage-scrolling-behaviors-media-crazy/

anon July 1, 2011 at 9:52 am

Stop being reasonable. Don’t you see the sky is falling?

Anon. June 30, 2011 at 1:20 pm

There’s a shitload of similarly absurd patents being awarded, the USPTO is completely incompetent and unable to judge the real merits of patent applications.

Not to mention the absurdity of software patents…

Right Wing-nut June 30, 2011 at 2:00 pm

Bit ‘o History: The mandate of the USPTO used to be to “issue valid patents”. The point being that a patent had a strong presumption of legitimacy. It was changed (thank-you Al Gore) to “helping our customers get patents”. That presumption is now lost. The result? More patents challenged in courts. More money spent on lawyers to attack and defend said patents. More money to a profession that contributes to Democrats. More barriers of entry for established industries.

Everyone wins!

Matthew Ernest June 30, 2011 at 2:19 pm

I think a bigger problem with patents is people crying about overbroad patents without reading the claims to see how broad the claims actually are. If you read the actual claims, or Nilay Patel’s article linked above, you’ll see that the gestures are specifically for distinguishing between a) scrolling a web page that contains a scrollable frame, and b) scrolling just the frame without scrolling the web page, and doing so specifically by using a different number of fingers.

Andrew' June 30, 2011 at 3:31 pm

So they’ve patented multiple fingers.

Then I have just one for them.

Bernard Yomtov June 30, 2011 at 3:50 pm

Crying?

Try being a small company that gets hit with an infringement suit on some silly patent. There is no way to challenge the patent or defend the suit. The legal fees will bankrupt you before you even get going, and that doesn’t even take into account personnel time. So you have to pay the extortionist.

You’d cry too. The Patent Office needs to come to its senses, or Congress needs to force it to.

Matt Waters June 30, 2011 at 6:48 pm

I would say those claims are beyond obvious for interface designers skilled with the prior art. No matter how broad or narrow, using different gestures for scrolling a frame are obvious to any tablet designer who thinks for two seconds about how to accomplish scrolling a frame within a page.

Patents were really created for things like the light bulb, where engineers had to try many different things out before settling upon something that actually worked. I can assure you that Apple didn’t spend thousands of hours thinking up this particular multitouch gesture. Even if programming it took some time, the gesture itself is beyond obvious.

blah June 30, 2011 at 3:23 pm

Some patents are filed defensively – as a means of deflecting incoming lawsuits – not necessarily as a means to building potential licensing income streams.

I’d like to think this is the former, but we shall see.

Adam June 30, 2011 at 4:17 pm

Technology moves faster than the US Patent Office can keep up. Patents that were once locking down true discoveries, are now obsolete. The Lodsys patent case against tablet developers is an example where multiple people came to their own discoveries, due to new technology becoming pervasive in daily life, and therefore common sense overrules IP.

I feel patents should have a limit as to how many times it can be used in a court settlement, therefore stopping abuse– but preventing large corporations from blatantly stealing from smaller entities.

Bernard Yomtov June 30, 2011 at 5:07 pm

The Lodsys case is a good example of patent foolishness.

Among other things, I find it odd that a company can have a patent and then sue half the world for infringing it. If everyone is “infringing,” then how can the innovation be “non-obvious.” Isn’t that self-contradictory?

Gunnar Tveiten July 1, 2011 at 2:11 am

Hardly anyone in IT believes that patents are nessecary for the development of new technology and software to occur. Indeed it’s my impression that most think they are more actively harmful than helpful.

Doc Merlin July 1, 2011 at 9:10 am

Well yes, the purpose of patents in IT is to slow inovation, so its easier to extract profits.

Doc Merlin July 1, 2011 at 9:09 am

Considering that this has been appearing in movies for years? Its a BS patent.

Craig July 1, 2011 at 10:35 am

That’s the real objection. “Minority Report” (2002) almost certainly depicts whatever hand gestures Apple seeks to protect…and I, too, have some choice gestures to share with Apple…

jhn July 2, 2011 at 10:18 am

Fingerworks was shipping multitouch products in 1999, and Apple bought them.

Dumb patent, but Minority Report didn’t “invent” anything.

Invisible Finger July 1, 2011 at 3:43 pm

I have an IP-free gesture I’d like to use.

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