
Apple Loses German Top Court Case on Swipe-to-Unlock Patent - bitzerlander
http://www.bloomberg.com/news/articles/2015-08-25/apple-loses-german-top-court-case-over-swipe-to-unlock-patent
======
JustSomeNobody
This always struck me as an "On the computer" patent. The slide to unlock
mechanism has been around since forever (think any bathroom stall or old wood
screen door, etc). Just because it's on a computer screen shouldn't make it
patentable.

~~~
MichaelApproved
I think these are different, though I don't necessarily think it deserves a
patent.

In real life, slide to unlock pushes a bar in place to prevent the door from
swinging open. You slide to unlock, so the bar is moved away from blocking the
door.

"On the computer", it's making sure that you deliberately intended to use the
device and it's not an accidental "pocket dialed" motion.

These are similar motions addressing different problems. In the physical
world, you slide the bar into place to allow the bar to work for you. On the
computer, you slide to express a deliberate intention.

Anyway, deserving of a patent or not, these seem like different mechanisms.

~~~
exodust
That argument could be applied to any digital concept that has a real life
counterpart. "Window" for example, in the real world it's made of glass and
keeps rain out. Does that mean the digital window is different enough to
deserve a patent?

But more importantly, "slide to unlock" is essentially "swipe to unlock". The
swipe zone is confined to a specific area, but it's still swiping. "Flicking"
also works. Apple are trying to patent "swiping", which is ridiculous.

Just like "double click to unlock" would be equally absurd as a patent for
unlocking a desktop PC. Changing the name to "double press to unlock" doesn't
suddenly make it unique.

~~~
iopq
You're making his case for him. A computer windowing system should be able to
be patented even if real windows exist.

~~~
jussij
A computer windowing system does not model real windows, it models pieces of
paper, spread across a desk.

On a desk cluttered with papers, you can see bits of some papers and others
papers are hidden by other papers that are on top.

There is no way you should be able to patent such an obvious real world, real
life experience, just because you were the first to take that real world
experience and replicate it on a computer screen.

All you have done is modeled a real work experience.

------
germanier
Minor nitpick: The ruling court was not "the German Supreme Court" (which
there is no single direct equivalent - often the term is used for the
Bundesverfassungsgericht but that's problematic on many levels). The court was
the Bundesgerichtshof which is the highest court for civil cases. Best is the
avoid the term "Supreme Court" at all when talking about the German court
system.

~~~
Tomte
The Bundesgerichtshof is also Supreme Court for criminal cases.

The phrase "Supreme Court" is indeed problematic, since we have quite a few of
them (administrative law, labor law, finance law, social law, plus BGH and
BVerfG), but I think it's okay to call the Bundesgerichtshof so.

More okay than calling our Federal Constitutional Court "Supreme Court", at
least, since generally speaking the Constitutional Court is not "above" the
other courts.

~~~
germanier
I would be happy with calling it "a German supreme court" (which is maybe
misleading but technically correct). The phrasing "the German Supreme Court"
implies that there is only one and it's somewhat comparable to the US Supreme
Court which are both wrong assumptions.

------
TheMagicHorsey
Even the so called "good" software patents have a lot of the same elements as
this bad patent. The problem is, most people aren't going to bother to read
the claims of those patents and try to understand what the concepts claimed
really are.

I have been involved with several patent suits (on both litigant side and
defendant side) and as an engineer, I have to admit that there has never been
a time when I haven't read the statement of the problem the patent says its
going to solve, and not thought of the solution myself, way before the patent
presents the same solution. In other words, every single litigated software
patent I've been asked to review has been BLATANTLY obvious. And I'm no
genius. I've talked to other engineers and they've all said the same thing. I
just explain a problem domain, and they usually give a solution that comes
under the claims of the litigated patent.

This is not to say that there aren't non-obvious software patents. Its just
that those never seem to get litigated, because they aren't some obvious
concept sitting at the nexus of a well-trodden path the industry is following.

I can't describe or link the specific patents I've been involved with, for
obvious reasons, but the stuff I'm talking about sounds like things as
follows:

"Receiving at a server a data packet, the data packet comprising a user
identification number and a merchant identification number

retrieving a record in a database referenced by the user identification number

determining if the record in the database contains an authorization entry
corresponding to the merchant identification number

responsive to the record in the database containing an authorization entry
corresponding to the merchant identification number, transmitting a second
data packet, containing an authorization token, to a server operated by a
merchant."

I am not lying to you. This is how stupid each of these patents have been.
Sometimes even worse.

Nobody not involved in these litigations understands how bad it is. And this
is coming from someone who has made at least enough money to buy several
luxury cars, providing consulting services to this particular legal industry.
In other words, I have a financial interest in things remaining this fucked
up. And I'm still telling you, its really fucked up.

~~~
ScottBurson
Yes, I think this is the essence of the problem: the PTO and the courts have a
very hard time distinguishing a nonobvious invention from an easy problem that
merely happens to have been solved for the first time (as far as the PTO can
tell).

I have occasionally seen a software patent with an idea that was not obvious
at least to me, but I haven't seen many of them. Most have been as you
describe: once the requirements are understood, there is no difficulty
designing a system to satisfy them. It's just that (again, as far as the PTO
can tell) nobody has come across that particular set of requirements before.

I think that in order to litigate a patent, the patentee should be required to
provide evidence that their invention was nonobvious. The PTO is poorly
equipped and structured to do a good job filtering out obvious "inventions"
(for example, examiners have no incentives to do so); and yet, as things
stand, the courts defer to the PTO on this question. I think the rules should
be changed so the court has to be persuaded of the nonobviousness of the
patent before the suit can proceed. That would be a potentially adversarial
proceeding itself, in that the defendant would be allowed to argue that the
invention is obvious, but the primary burden of proof would be on the
patentee.

One could argue that this would put on the court a job that should belong to
the PTO, and that argument has some merit, but here's a counterargument. It's
often hard to tell, when a patent application is filed, how much the potential
patent will be worth. Delaying part of the effort involved in evaluating the
patent until such a time that the patentee has actually decided to litigate
makes some economic sense. More to the point, it is often easier to show
nonobviousness once some time has passed. One of the Graham factors [0] that
can be used as evidence of nonobviousness is commercial success of a product
based on the invention. Such success can't have occurred yet at the time the
patent application is filed.

The change I am proposing would constitute a massive shift in the balance of
power between patentees and alleged infringers, and a lot of oxen would be
gored; I'm well aware of that. A lot of companies would see the putative value
of their patent portfolios drop precipitously. Against that, they would have
to worry a lot less about being sued.

I'd be interested in your take on this, as you've been inside the system a lot
more than I have.

[0]
[https://en.wikipedia.org/wiki/Graham_v._John_Deere_Co.#The_P...](https://en.wikipedia.org/wiki/Graham_v._John_Deere_Co.#The_Patent_Act_of_1952)

~~~
TheMagicHorsey
How would one present evidence of non-obviousness? It seems very difficult
once a solution is presented. Its a bit easier to prove that something was
obvious at the time of invention. One sure sign is if there are many cases of
independent invention.

I think therefore that one simple way to ameliorate some of the abuse in
patents is to give defendants an independent invention defense. What I mean
is, if you can prove that you had no access to the patent holders patent or
idea, and that you came up with it independently, then, that should be taken
as a factor showing that the solution may have been obvious. If additional
companies similarly show that they also independently came up with the same
solution, then that is additional strong evidence of obviousness that should
make the finding of obviousness more likely.

Right now, independent invention is not a defense. And multiple independent
invention isn't even considered evidence of obviousness.

As embarrassing as slide to unlock is for the US patent system, its actually
not the more egregious case of obvious things being patented. If you look at
what is being filed in social networking patents, database patents, and cloud
computing, any person here on Hacker News would be shocked.

The problem is, the USPTO examiners are NOT shocked. Have you ever talked to
one of them? The quality of their technical knowledge is EXTREMELY poor.
EXTREMELY. The USPTO seems to have recruited third-rate PHDs and other
"technical" folk from developing nations, and put them into examiner positions
based on their degrees alone. I have seen many many office actions from USPTO
examiners where it was obvious that the examiner understood absolutely nothing
of the patent he was reading, so he just did a Google search on the key words
in the abstract and pasted the paragraphs he found into a response. The office
actions are not even coherent, much less effective.

Don't take my word for it. Do a search for a patent that has some technical
phrase you are familiar with ... say Markov Chains. Then take the patent you
find and go to the USPTO Public PAIR database. Pull up that patent
application. Go into the record of documents for that patent and read the
first office action that was sent by the USPTO for that patent ... I will bet
you 10 to 1, the office action will be utter gibberish that makes no sense.
I'm willing to give you those odds, because out of the hundreds of office
actions I have seen, perhaps less than ten have made any sense ... where the
examiner had any clue at all.

Programmers don't realize this basic problem.

Every patent lawyer understands it. And they are embarrassed by it. They are
embarrassed because they are making tens of thousands of dollars writing
oppositions to documents written by what are essentially technically retarded
individuals. This is not a disputed fact. Go put some beers into a patent
prosecution attorney, and let him start talking to you about office actions he
has received from the USPTO.

These office actions usually don't get seen by the public. They only get
surfaced in big litigations ... and when they are surfaced, all involved are
deeply embarrassed. Why? Because both plaintiff's and defendant's attorneys
don't want to come out and say that they are making a living in a system that
is fundamentally broken at its very core.

What does it mean if the USPTO patent examiners don't actually do any
examination worth a damn at all? Has the American public been made aware of
this blatantly obvious and true fact? No. They continue to think that the
USPTO is actually serving a useful examination function. That is a complete
and utter lie. And its a lie out in the open. Just open up the prosecution
history for any technical patent as I asked earlier. ANY TECHNICAL PATENT.

~~~
ScottBurson
The problem with the independent invention defense is, how can you ever
_prove_ you had not seen the patent? One could read a patent, then change
terms, rearrange parts, etc. until it was not at all clear that one's own
expression of the idea actually came from the patent. I realize an independent
invention defense seems natural to us as engineers, since we independently
(re-)invent things all the time, but I don't see how it would work as a matter
of law.

And people wouldn't necessarily have to have read the actual patent in order
to abuse such a defense -- they might just have seen the product that
incorporates the invention.

As for how one would present evidence of non-obviousness, if you follow the
link I gave, you'll see three kinds of evidence which can support such a
claim, according to the Supreme Court: commercial success; long-felt but
unsolved needs; and failure of others. I think what these all have in common
is clear: you need to show that others have had an incentive to try to solve
the same problem, but haven't done so. _That_ would constitute evidence that
the solution wasn't obvious.

> It[']s a bit easier to prove that something was obvious at the time of
> invention. One sure sign is if there are many cases of independent
> invention.

How would this work? If the independent inventions occurred _before_ the
patent application, they're already prior art; if they occur after, then once
again, we can't know they were truly independent.

I already knew the examiners were pretty bad, though maybe I didn't realize
quite _how_ bad.

How did you get started in this kind of consulting?

~~~
TheMagicHorsey
There is an independent invention defense of sort in Copyright Law. A
Copyright plaintiff actually has to prove that the defendant had access to the
material and was inspired by it (or copied it).

BTW, substantial similarity acts as defacto evidence of copying in Copyright.
So, you might claim you didn't copy Michael Jackson's Thriller because you
were on a desert island and never heard it, but if your rendition is really
similar to the original, then that similarity is itself proof sufficient that
you are lying. Additional evidence isn't necessary.

In software things could work differently. I think one way the defense would
be most aptly used is in cases like the notorious podcasting patent. There you
could see literally hundreds of independently written podcasting style
applications, where literally every one of the engineers writing podcast
software were willing to testify that they'd never seen the podcast patent or
heard of the company that wrote the patent. I think courts can take that as
strong evidence of obviousness, as all of those engineers perjuring themselves
is unlikely, and the simultaneous widespread invention of the same thing means
its probably an inevitable and obvious advance.

I don't want to go into too much detail about how I started my current patent
work, because this account is anonymous. I'll just say, though, in this
business credentials mean everything and actual practical expertise means
nothing. I have a law degree from a top ten law school in the US, in addition
to an engineering degree from an Ivy league school, and over a decade of
engineering experience at brand name US tech companies. My resume looks good.
That's why I get work. It has nothing to do with my skills as an engineer. I
know how to communicate technical ideas, read legal documents, and look
confident in my advice to people for whom appearances matter.

Any bright engineer can learn to do what I do in less time than it would take
to master something technical (like machine learning), but you'll need paper
credentials to get in this business. That's why I don't recommend this line of
work to people that prize capabilities over paper.

Also, its a get rich slow scheme.

~~~
ScottBurson
But that's exactly the difference between copyright and patent: copyright
covers the expression of an idea, but patent covers the idea itself. J.K.
Rowling can't sue me if I write a book that's just like Harry Potter except
that the places, characters, and storyline are all different, and all that
remains is that it's a book about kids growing up learning about magic at a
weird school. On the other hand, if it were possible to patent such an idea,
and Rowling had done so, then it wouldn't matter that I had changed all those
things: the idea would still be there.

So for copyright, the absence of substantial similarity is a straightforward
defense, but it couldn't work that way for patents.

I agree about the podcasting patent. There are a few cases where so many
people have independently invented the thing that its obviousness is
overwhelmingly clear. I don't know how often that happens, though.

~~~
TheMagicHorsey
It happens all the time. In fact, that's where all the valuable patent
litigations happen.

~~~
ScottBurson
Well, from your perspective it may happen frequently, because those are the
cases you get called in on. That doesn't necessarily mean that these cases
represent a large fraction of the obvious patents that have been issued and
that we would like to see invalidated. There are an awful lot of those, as you
yourself have pointed out.

Thank you for your comments, though. It has been interesting hearing about
your experiences, and I think we agree on many points.

------
minthd
I think this should apply generally to touch screen gestures. Once someone
invented a good enough touch screen display(capacitive) , the gestures are not
that big of a step.

All Apple did was to acquire the inventors of the capacitive touch - and
worked a bit on the UI. And while it's valuable to be the first company who
recognize the importance of a capacitive touch screen - that isn't a basis for
a patent - and Apple did get enough benefits anyway.

~~~
mtgx
Like the bounce-back effect patent, which is even sillier than the slide-to-
unlock one. The main problem by far is still having these patents granted in
the _first place_ , and then either having multiple companies getting harassed
by others to pay them money for the bogus patents (like what Microsoft does)
or spend millions and years in Courts to resolve just a handful of them.

Sounds like a terribly inefficient system to me. Not to mention that because
the US Patent Office has such low standards for accepting patents, that also
means lawyers will file just about any crazy idea they can come up with,
backing up the USPTO for 4 years.

If the USPTO took a stance to reject 80% of the filed patents while still
charging them a few thousand dollars per application, I think the quality of
the patents would significantly improve in a few years. so if there are some
good patents in there, perhaps from a startup, that startup will have to wait
4 years to get it. That sounds like ages for a small company and it could be
long dead by then, especially if it doesn't get funding because of the lack of
an approved patent.

[http://www.macworld.com/article/2042023/apples-crucial-
overs...](http://www.macworld.com/article/2042023/apples-crucial-overscroll-
bounce-patent-claim-is-valid-us-patent-office-says.html)

[http://www.zdnet.com/article/apple-bounce-back-patent-
declar...](http://www.zdnet.com/article/apple-bounce-back-patent-declared-
invalid-in-germany-thanks-to-steve-jobs-video/)

~~~
AndrewStephens
I remember watching the original iPhone presentation thinking "this looks OK
but touch screens suck" then having the UI-design-oriented part of my brain
completely blown by the bounce-back effect. No other touch screen software
worked that way and it is hard to think of something physical that bounces
like that (unlike the swipe-to-open metaphor).

I am not a lawyer and I have no opinion on the validity of the bounce-back
patent (although the German court rejected it based of publication date rather
than merit), but from a business point of view I can see why Apple was so keen
to hog bounce-back for itself. I didn't buy a iPhone for a few years but they
won a customer that day.

~~~
Retra
>it is hard to think of something physical that bounces like that

Have you never quickly opened a drawer with stuff in it?

~~~
talmand
I think a better example would be a drawer with rubber stops that causes the
drawer to bounce back if you open it too quickly.

Or a door with a rubber stop on the wall. Or even a door with a soft spring
that prevents it from opening too far.

Or a car with good bumpers.

Or a chair that springs forward if you rock back too far.

Or bungee jumping.

Nope, can't see any evidence of that action in the physical world at all.

~~~
AndrewStephens
Good examples, but I would be willing to bet that at some point all those
things have been covered by different patents. The company who patented a
chair rocking mechanism would not be affected by the inventor who made a door
with soft springs (although I have never seen a door that works exactly that
way).

~~~
gamblor956
The difference is that those patents would cover the specific mechanisms by
which the bounce-back effect was achieved. In this case, the Apple patent
covered the bounce-back effect itself, _without regard_ to the code or other
specific mechanisms used to achieve the effect.

------
JohnTHaller
This is long overdue. As is invalidation of the bounceback patent. Like so
many of "designy" patents, there's quite a bit of prior art.

The whole "but on a computer" patent needs to go away. "Sliding a latch from
one position to another to open but on a computer" should not be patentable.

------
thomasrossi
Well in EU some algorithm is surely patentable if it has a "technical effect",
for instance if you can move a robot arms consuming less energy or producing
less waste materials, it must have a physical impact on something. Quote: "the
method didn’t reach a level of sophistication needed to award patent
protection", just this, lol at patenting it in the first place.

~~~
axman6
I feel it would be easy for Apple to argue that is does have a physical effect
- it makes it easier to access a locked phone than having to enter a pin, or
one of the many other methods of unlocking electronic devices.

~~~
thomasrossi
It is not saving battery, it is not producing less waste.. so no, it has no
physical effect. As an algorithm it cannot be patented in the EU, and code-
wise in EU it's the only thing you can try to patent.

~~~
axman6
It's making life easier for the user... this is one of the primary things that
patents are here for, inventions which make life easier. And it's certainly
not what would be considered "an algorithm" by any patent office - it has user
interaction, in involves hardware, it is clearly not just a mere algorithm.

------
tempodox
“ _The contested patent thus isn’t based on an invention._ ”

It seems there are more patents that fill this description.

------
DasIch
Interesting that the article doesn't mention that there is prior art, which
was discussed in court, in the form of the Neonode N1m.

~~~
walid
The true prior art is the door bolt. Slide to unlock. Bringing the same method
and procedure to a phone or car shouldn't warrant patent protection.

------
brlewis
_Judges on Tuesday said that the iPhone maker’s method didn’t reach a level of
sophistication needed to award patent protection_

Just so I understand what happened, can someone summarize German patent law?
Is it the same 3 tests as in the U.S., i.e. statutory, novel, non-obvious?

------
amelius
I'm waiting for a future where we can ask a "blank" AI to come up with trivial
solutions to new problems, so that we can just invalidate such stupid patents.
If the AI can invent it, it is not worthy of a patent.

~~~
TheOtherHobbes
UI stuff is _not trivial._

Simple != trivial. The art is in designing a high quality experience, not in
solving a programming problem.

Look and feel is a very real and valuable thing in the marketplace. The big
differentiator between Apple and everyone else is that Apple pays attention to
- or used to pay attention to, anyway - the user experience,

The code behind the experience was always secondary to that. Users don't care
about it, and they're completely fine with not caring.

I agree that there are limits, especially when there are patents on rounded
corners or specific English words.

But generally if there's innovation in the user experience on a screen it's
potentially patentable, even if the code behind it is trivially simple.

AIs have no concept of user experience, so it's unlikely you'd get much of
marketable value out of one.

~~~
norea-armozel
It's more that AI can't be taught aesthetics since for most people it's a "I
know it when I see it" sort of thing. Very few people can turn that into a
talent like Scott Forestall. We're probably at least a century away before we
can get an AI to work at that level of abstraction.

------
littletimmy
I don't get how this was a patent to begin with. The door in my room has a
"slide-to-unlock" lock that dates back 50 years. Surely Apple did not invent
this.

~~~
unfamiliar
I think it is a mistake to suggest that slide to unlock on a touchscreen and a
sliding bolt are the same concepts. The important thing as I see it is a way
to change a touchscreen from a state of "unresponsive to input" to a state of
"responsive to input" by requiring a very restricted set of inputs to be
entered. "Swipe to unlock" is just one (pretty good) definition of this
restricted set of inputs. I think this is quite conceptually different from a
physical lock unlocking a physical door.

~~~
batrat
Don't know the technical terms but how is "unresponsive to input" when you can
interact with the lock screen. For example swiping/expanding notifications,
change songs, etc. For me "unresponsive to input" to a state of "responsive to
input" would be the power/home button let's you interact with the screen.

~~~
unfamiliar
Fine. Change "unresponsive to input" to "unresponsive to all but a very
restricted subset of all possible inputs".

------
kriro
Pretty obvious this was going to happen. Pretty much the only software that is
patentable in Germany is stuff that controls physical machinery of sorts
(embedded break controls or something). Control of forces of nature to cause
an expected effect is what qualifies. "Technizität" (technical character) is
what it's called. It's one of the four criteria. The other being it has to be
"new" (no prior publications including your own), marketable (no clear cut
criteria) and an invention (an "imaginary expert in the field" can't come up
with it, also pretty debatable).

So technically not much really qualifies. [IANAL]

------
Tloewald
I don't think "obvious in retrospect" is a fair criterion for invalidating a
patent. Those are actually the most valuable patents. The safety pin and the
catseye (road reflector) were both patented and made fortunes for their
inventors (or in the case of the safety pin the company that bought the
patent).

Now arguing the whole patent system is fucked up is perfectly fair but we
shouldn't celebrate a legitimate, non-abstract patent being incorrectly
invalidated.

~~~
mattmanser
It doesn't say that in the article, what are you basing it on?

It says that it wasn't sophisticated enough. Safety pins and cats eyes both
require sophistication in their construction.

~~~
Tloewald
I should have been clearer. Their definition of "sophistication" is arbitrary
and effectively amounts to "obvious in retrospect". Safety pins and catseyes
aren't more "sophisticated". The inventor of the safety pin made a working
version in a few minutes. Differentiating an intentional slide gesture is
actually much more _sophisticated_ than bending a wire or mounting a reflector
on a piece of rubber.

------
shmerl
Good. Such stuff should never have been patentable to begin with.

------
mildrenben
Glad to hear it, Apple's been going stupid crazy with this patenting lately.

~~~
atirip
Lately? Like 2015?

~~~
mahouse
Last week of August 2015

------
jheriko
does the patent say it actually has to work? XD just saying...

i'm always in two minds about this but i lean very heavily towards culling
people who think this sort of thing should be patentable. i think it would
benefit everyone for the entire future mostly...

------
chubs
I can't imagine tim cook losing any sleep over this. Most users unlock their
phones via touch ID (fingerprint) these days.

~~~
tychuz
Still shows "slide to unlock". Which you can do and enter pin instead of using
fingers (or tongue if you were bored like me).

Also there's still iPhone 5C(heap) phones in production which don't have
fingerprint reader.

------
jchrisa
Ha! I just used a cheapo off the shelf website that featured slide to unlock
on web forms for spam prevention. Not posting the link because I don't want
Apple breathing down their neck.

------
astazangasta
I'd say "good riddance to bad rubbish" but this is just one of a million
nonsense patents that are uselessly being applied to transfer wealth upwards.
Why, humanity, why? Why do we continue to hang ourselves with these thin
fictions?

Our property concepts are fundamentally broken. Copyrights, patents and
especially real estate are all flawed concepts that privilege their owners far
more than they should. But we allow them to persist for centuries; then we
wonder why society is fucked and some people have all the wealth.

~~~
brador
What's wrong with real estate?

~~~
astazangasta
Arbitrary titles granted to someone that allows them to control a piece of the
Earth in perpetuity? That doesn't strike you as a recipe for disaster and
inequality?

For a full answer, try: "Progress and Poverty" by Henry George.

~~~
tinco
I feel we're mixing too things now. There's control of land, and there's
ownership of land. Control of land is mainly obtained by conquest and
occupation, that's to say physical dominance. Titles are usually obtained by
persons that attained this dominance, so that's hardly arbitrary (nor very
perpetual though that may often seem so). This is nature.

Ownership is the fun stuff where you pay money/goods to the previous owner
(who might very well be (a descendant of) an oppressor). In exchange for
rights of exploitation (i.e. living on it).

It's not the titles that make real estate unfair, it's nature itself. That's
why an egalitarian society can not be like nature but must instead be governed
by rules and regulations. This is why democratic socialism is superior to
libertarian capitalism (at least when we're talking equality and 'fairness').

~~~
astazangasta
Fairness is a human concept, as are land titles. If the latter are unfair we
can't blame nature.

