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Another Spanking for Apple from Judge Posner (groklaw.net)
173 points by grellas on July 5, 2012 | hide | past | web | favorite | 68 comments



The great thing about patent-a-geddon is that its really bringing the problem out front and center, both to the judiciary who are learning how the patent office failed us around the turn of the century and Congress where companies are crying out for relief and promising campaign money if they get it. I predict it will do a lot to make this stuff saner.


Agreed, although it's always a risky bet hoping Congress will turn corruption (promises of campaign money, cozy ties with lobbyists) into good legislation. I'm sure it happens on occasion, but we could just as easily wind up with laws that gave relief only to a few very large companies in certain (ill-defined) industries.

But here's hoping!


Somehow Apple forgot that he was borrowing (let's not use stealing) many ideas from other companies. The "Slide to unlock" probably was inspired by Sony walkman's "slide to open". Surely, they must have got a lot of experience in suing other people over ideas they borrowed back from the windows GUI case in 80s.


You don't even have to look that far back - pre iPhone, it was used on the Neonode N1m:

http://youtu.be/7ru2GjBTHRY?t=3m56s

Even if the iPhone were the first to use it, the patent is still ridiculous. If you tasked 100 engineers to come up with an unlocking solution for touch screens before the iPhone existed, I'd bet good money at least 50 of them would consider it an option. That's not non-obvious.

Patents in software are no longer about inventions, they're about being the first do obvious technique x in context y.

And sometimes, that's not even necessary - I've had a technique I used for displaying cross domain ads in Flash that I considered obvious at the time patented out from under me later on. The "in Flash" bit being the novel part, I assume - I try not to spend too much time dissecting insanity.

At least we're starting to see notable investors rally against them, like pg and Fred Wilson - the very people who should be benefiting the most from a non broken patent system.

Edit: Clarified line about the 50/100 engineers.


> At least we're starting to see notable investors rally against them, like pg and Fred Wilson - the very people who should be benefiting the most from a non broken patent system.

John Carmack has been speaking out against patents for a long time, and you would think he should be the perfect example of the lone genius inventing amazing new technology that needs the patent system to make money from his inventions:

http://harmful.cat-v.org/software/patents/carmack


Helps that he's been directly hit by them: both Carmack and Creative Labs developed a similar shadow algorithm around the same time (depth fail[0] or "Carmack's Reverse"), but Creative got a patent and id had to license their tech because of it (and the Reverse had to be stripped out of the iT4 source release).

[0] http://en.wikipedia.org/wiki/Carmack%27s_Reverse#Depth_fail


The story neatly illustrates how the patent system doesn't really benefit inventors and instead benefits well established corporations.

And Carmack was against patents before that even, and what is more, even after that he refused to patent any of his work, not even for "defensive" purposes, just out of principle.


Sure 100 engineers would come up with the idea "slide to unlock". After you see and use something it's always easier to find this said solution. BUT before Apple it seems that none of the 100 engineers you mentioned came up with the idea and it was never build and that means it was never obvious before Apple created it.

Saying things are obvious after someone already invented a dead simple and good solution for a problem we had for years is always easy.

EDIT: Grammer.


The relevant question is, are the teachings of the patent likely to be necessary in order for a person of average skill in the art to implement the claimed technique(s)?

If the answer is not only "No," but "Are you joking?", then the patent should never have been issued.


That's a ridiculous metric for whether a patent should be issued or not.

Many things are easy to implement but are difficult to conceptualize.


Why, in your opinion, do we have patents?

Patents are a bargain with society: I, the inventor, will publish the details of my invention, instead of keeping it locked away forever as a trade secret. In return, you, the government, will grant me a limited monopoly on the invention.

But if the patent's teachings aren't even remotely necessary or helpful to those who implement my invention in the future, what exactly is society getting in exchange for the monopoly grant?

IMO, patents shouldn't be granted on anything that wouldn't otherwise be a candidate for trade secret protection. "Slide to unlock" certainly would never meet that bar. There is a 0% chance that anyone who is infringing on this patent needed to read it first.


You're making sense in general, but the other justification for patents besides encouraging disclosure of details would be encouraging exploration of a wide range of options. For example: I, the inventor, will experiment with thousands of materials to find the one most suitable as a lightbulb filament. In return, you, the government, will grant me a limited monopoly on use of that material as a lightbulb filament. Once I release a lightbulb with a bamboo filament my invention is trivial to reimplement, but that doesn't mean the patent isn't contributing anything useful.

Now in this case, the analogy would be I, Apple Computer, will experiment with thousands of touchscreen UIs to find the one most suitable for unlocking the device, and you, the government, will grant me a 20 year monopoly on whatever I come up with. I think the sane response is, "eh, no deal." We're just not getting enough out of the bargain. But "easy to reimplement once explained" isn't the problem there -- "easy to implement in the first place" or "no additional incentive required to encourage innovation" is.


The light bulb example isn't adequately addressed by my original argument, but I have another one up my sleeve. Namely: If it's likely to the point of being almost certain that someone else will soon come up with the same solution, it shouldn't be patentable.

If inventors are to be rewarded by monopoly grants, it should be for doing genuinely challenging, innovative research, not for winning a foot race to the patent office, as happened with popular technologies like the telephone, or for trying random stuff until you hit the lottery, like Edison did with the light bulb. We, the public, would not have had to wait much longer for electric lighting if patent protection had been unavailable. We didn't get anything special in return for our monopoly grant to Edison.

An appropriate quote that I saved from an earlier HN thread: "It has always appalled me that really bright scientists almost all work in the most competitive fields, the ones in which they are making the least difference. In other words, if they were hit by a truck, the same discovery would be made by somebody else about 10 minutes later." -Aubrey de Grey


However, that is not the purpose of the patents.

You can't patent an idea, you can only patent an implementation of it. E.g., I can't patent a flying carpet until I actually know how to make it and prove that I can (by making it or being very specific in technical instructions on how to make it).

An patent is obvious if you can explain the idea, i.e. what you want the machine to do, to a graduate engineer/scientist, and have him implement it. As for the famous doubly-linked list patent: if I tell a programmer: "I have a number of items {A, B, C, D, E}, and sometimes I need to access them in the [A -> B -> C -> D -> E] sequence, and othertimes I need to access them in the [B -> C -> E -> A -> D] sequence. Make an efficient/working implementation of it!", then any programmer could come up with the doubly-linked list implementation. Ergo, it is obvious.


Come on, I clearly meant before Apple first used it. Today, 100 out of 100 engineers would consider it.

You are right that obviousness changes over time, and it's important to consider it from the perspective of the time of the invention.

But some things genuinely were obvious at the time of their 'invention'.


I actually wish it was that obvious: I used Palm OS, RIM, and Windows Mobile devices before the iPhone and the unlock mechanisms (on the touchscreens!) ranged from "press the tiny * key, then the unlock soft button" (which was awful) to "press the center button once" (somewhat less awful). Slide to unlock was a huge deal for me: I no longer dreaded the crazy key commands needed to unlock a smartphone.

Palm Treo: http://blog.treonauts.com/picKeyGuard01.jpg

Palm Windows Mobile: http://www.hpc.ru/lib/arts/2364/palm-treo-750v-keylock.gif

Windows Mobile: http://cdn.pocketnow.com/wp-content/uploads/2009/08/DeviceLo...


The obvious question is why didn't it appear on ANY of the major OEM's phones before the iPhone ?


Because the previous touchscreens was resistive and used with a pen/nail. And their UIs wasn't at all about dragging stuff but rather clicking on them.

Once you define your UI around a capacitive touchscreen "slide to unlock" becomes trivial.


Which is really the key aspect to all of this.

Technology moves forward enabling new behaviors that were never possible before, and much of the "innovation" that people declare is nothing more than a land-rush (see the "on a computer" that was the invention of countless patents). The iPhone stood on the backs of the GPS industry, for instance, that pushed much of the innovations in mobile chips, GPUs (OpenGL ES and mobile GPUs were made for the in-car GPS industry), screen and touchscreen technology. Suddenly the technology was there to do things that couldn't be done before and the land grab was afoot. Is a land grab innovation?

I don't discount that Apple invented and refined a lot, or that some companies seem to be addicted to simply cloning (Samsung is particularly guilty of this), but a lot of what Apple is credited with isn't much more evolved than "on a computer". And now that we have all sorts of innovations in battery technology, chipsets, etc, things like Google's glasses are possible, but only a fool would imagine that they created them out of the ether, instead of simply moved to where technology had brought them.


But there are numerous examples of "swipe to unlock" right here in this thread. By qualifying that with "major OEMs", you're just moving the goal post.


I'm not trying to move any goal post. We are dealing with the major OEMs who are alleged to be infringing. And numerous examples of prior art where ?

All I've seen in this thread is the Neonode. The video games and hardware locks are ridiculous because a patent is NOT a general idea it is a specific implementation of a concept.


"All I've seen in this thread is the Neonode."

It only takes one, and there is no requirement that that one be from a shipped product from a "major OEM". A sufficiently descriptive Usenet post is sufficient. Patents have been rejected because the described object was previously described in science fiction novels.


That is a fair question -- the neonode phone may count as prior art (although it looks a bit different to Apple's patent claims), but it's not exactly a well known phone. It's very unlikely that people at Apple would have been aware enough of that to make their own implementation 'obvious' based solely on that -- unless it was big in the US but never made it far here? Edit: and two independent implementations (out of the hundreds of phone models) certainly doesn't prove obviousness; that's a nasty insult to the engineers/designers who worked on the neonode and may well have been proud of their innovation.

Still, for all that I love Apple and their products, swipe to unlock is a pitifully small thing to waste a patent on. To my mind, patents are needed but should be:

* non-transferable to a new owner -- no buying and selling, and lost altogether when the owning company is itself acquired.

* only applicable to actual products -- invalid if none of the company's products use it within, say, one or two years of application.

* short term -- two or three years from initial product release ought to be enough, while still allowing some competition down the line.

* very low base cost, but with a small cost per product model and maybe even a tiny cost for each device sold.

Those four changes could probably bring the patent system back to its original intent, in my opinion.


Prior art doesn't mean it was obvious, but it does mean the patent was invalid. It doesn't matter, for patents, whether you knew about the previous creation of the thing in question, your creation of it still can't be patented (and if the previous one was, you are still infringing - although you may not be "knowingly infringing", which can affect the penalties but not whether you infringe in the first place).


Yes, but if i recall correctly, apple's patent claim is quite specific about dragging an on-screen picture across a visually represented path -- isn't that how google got around it in android? The neonode, on the other hand, doesn't look to have any visual indicator at all; it just uses a corner-to-corner swipe with nothing extra on the screen.

Also, it was the judge who said the neonode made it obvious, which seems wrong to me given the lack of mainstream implementations.

But none of this changes the fact that this patent is ludicrously trivial -- even if not obvious -- and should never have seen the light of day.


"BUT before Apple it seems that none of the 100 engineers you mentioned came up with the idea"

except for, you know, the numerous examples of prior art given throughout this thread.


> BUT before Apple it seems that none of the 100 engineers you mentioned came up with the idea

Except for those Neonode N1m engineers, as the video clearly shows that they did.

But I guess they though the idea was so obvious they didn't apply for a patent.


Yes, they do have a patent. U.S. Patent No. 8,095,879: Unlocking a device by performing gestures on an unlock image http://patft.uspto.gov/netacgi/nph-Parser?Sect1=PTO2&Sec...



He just linked to a video of someone else doing it before Apple. Also physical world has had slide to lock/unlock for a really long time:

http://m2.sourcingmap.com/smapimg/en/n/11b/hardware-door-loc...


I receive a 403 Forbidden Error on this URL.


Sorry, it is a sliding lock. Just went with the first image I found on GIS.


I don't think apple are really trying to protect their intellectual property per se. After all the patents they put on the line are frivolous, and usually easily discounted... after a lengthy case.

Instead I believe these lawsuits are their 'revenge' for what they view as an injustice or 'stolen product', they know this harms their competitors and google financially, and interestingly the bulk of the buying market aren't phased by what they're doing. As a ruthless competition tactic it seems to be effective. I'm curious to know if the net spend of paying out legal fees is advantageous in comparison to the sales generated by this tactic.

If we're lucky this stunt of theirs will be what's needed to have the patent system overhauled in the USA. Apple have had fewer successes internationally, and the USA should as a minimum follow this lead.


> The "Slide to unlock" probably was inspired by Sony walkman's "slide to open".

Or you know, the physical slide to unlock bars on gates. I don't understand this misguided uproar around company Y suing company X for patent infringement. Why don't people start addressing the elephant in the room which what I assume is the USPTO.


Yes, it seems that many devices -- even phones -- have had a physical slider to lock/unlock. What I find strange about the lcd-touch-panel version is why everyone wants to use it? I thought skeuomorphic design was something that everyone but apple was actively avoiding.

I think I actually prefer the version where you draw a 2D pattern on a grid of numbers, or a picture... although this may also be covered by the patent. Hate patents.


Drawing 2D pattern is the same slide, just path is more complicated. As for popularity, I think it's because that's pretty good solution: you have to lock the screen do disable accidental manipulation. Simple tap doesn't work in this case, physical buttons are also less than optimal.


Surely there are lots of possible solutions -- tapping multiple points of a photo in sequence (am I the only one who prefers tapping for the reduction in finger prints?), camera face recognition, etc. You could even use a physical gesture, detecting patterns of movement of the phone through the accelerometer and gyro. Hmm... maybe I need to patent that!

A physical button would have been fine too -- something like the mute/orientation button would be enough to prevent most accidental triggering. Not very discoverable, though.

Right now my the only method I actually like is the iPad smart cover, as it's already unlocked by the time I have opened it. I tend to use a flip open case for my iPhone -- to protect from the inevitable fluff while in my pocket and to help the speaker when open (angle it just right for a big improvement in volume) -- so I'd like to see the iPhone 5 include that magnetic detection technology. Not very likely, I know.


Patents are naive obsolete laws that had well intentioned principles behind them. The other elephant in the room is tech culture that readily accepts copycats or competitors that aim for a proven market to cash in on me-too success with no intention to improve the idea and move technology forward.

Patents are supposed to discourage this. Steve Jobs probably agreed with the principle that you should aim to innovate, not merely make money.

Of course the problem is the legal system is ill suited to perform what is really an economic incentive. All these trials about silly details like straight edges and slide to unlock comically miss the bigger picture, but they're the only current avenue.


Isn't a zipper slide to unlock? (granted sliding and pulling are arguably different)


Why isn't there a bill circulating in the house or congress for patent reform yet? It's reasonably common in my country for companies to sponsor bills. Company having problems with legislation -> pays lawyers to write a bill -> lobby a few congressman to put bill to vote -> bill gets voted -> if no one opposes it, company gets its new law approved.

Is it too different in the US? Why hasn't Google done this yet? They're sure under a lot of pressure, have a lot of interest in patent reform and have enough lawyers to write a great bill. Just getting something like this to get voted, so it would show up on media, that would be huge. The MAFIAA is doing it to defend their interests. Why isn't Google doing the same to defend theirs?


There are many powerful interests on the other side of the issue. For example, pharmaceutical companies have very different desires for the patent system than Google would.


I can think of a bazillion of more problems like that. I can also think of a bazillion solutions (ex: reform only for software). An initial draft doesn't need to be perfect. But it would be great to get the conversation started. I'm not optimistic that a patent reform bill would be approved anytime soon, nor in it's first few attempts. But we have to start somewhere, right?


A proposed bill to ban software patent would be great, but maybe Google, Apple and co. actually "like" the status quo ? It's a kind a dissuasion weapon that only huge companies can get, so even if they don't like to fight with each other, at least they prevent new competition to arise


Because they've just passed something they called "patent reform", which barely changed anything. Now they think that they don't need to address the issue anymore for the next decade or so.


The patent reform law included restructuring of joinder rules, which will prevent patent trolls from casting a huge net over tens or hundreds of companies (like Lodsys did) and dragging them all out to Texas in a single suit. Instead, trolls like Lodsys will have to sue each target one- by- one, at much greater expense, and in each suit will have to make a case for venue; many patent lawsuits will probably now occur in venues favorable to the defendant (if only for logistical reasons).

The patent reform bill didn't fix everything, or even most of the problems, but it's not accurate to say it "barely changed anything".


Among other things, it doesn't matter how much Google wants to spend on patent reform. Apple can spend double or triple if it comes to that (not to mention other interests inside and outside the tech industry).

If you knew you were hopelessly outgunned, would you start that fight? Or would you lay low and hope that gridlock means that at least things don't get worse?


Not to mention Google just spent billions buying patents, investors might think it wasteful if then Google goes to push for abolishing software patents, even if it would still be a good business decision (those billions were never really an investment but a form of "insurance", if patents are abolished that insurance is not needed anymore).


Patent lawyers everywhere are laughing all the way to the bank. This is a phenomenal time for them to cash in on the dozens of giant lawsuits that are happening every single day. The customers are enormous and willing to pay however much it takes to make sure that their billion dollar investments are not removed from the market. What's a few hundred million dollars compared to the kind of money that Apple is reaping from their devices? Fortunes are being made as we speak.

These folks have a lot to gain from the patent system not changing. I'm going to guess that their spin will be "defending America's ingenuity" and "letting creators benefit from the fruits of their labor".


There was a Castlevania game for the DS where you had to swipe patterns to unlock some doors (among other things), does that count? I forget which one, but definitely pre-iPhone.



I dont know why people dont getting the reality of the whole patent thing. If apple not patenting things, someone other does and come back to kick apple in the nuts. Its just one of the many legal capitalism games. Stop the patent laws and nobody does it. Just simple as that. If Samsung or Google would lead the mobile Race, they would act the same (and they do already).


>If apple not patenting things, someone other does...

No, not at all. Patents are only granted if there's no prior art and as such if apple uses anything (such as slide to unlock) in one of their devices without patenting it that also removes the possibility for anyone else to patent it.

>If Samsung or Google would lead the mobile Race...

There are already more android devices than iOS devices. Google also leads in various other internet spaces and isn't nearly as aggressive patent-wise as Apple.

You're right that patent reform is the real solution, but I don't think it's us who "dont [sic] get the reality of the whole patent thing" but you.


Could someone explain to me why NeXT Software/NeXT Computer is listed as a co-plaintiff, on a lawsuit that was only recently filed? Did Apple and NeXT not fully merge in some capacity? As-is, this would be like reading Attachmate, Inc., Novell, Inc., and WordPerfect Corporation had just sued Microsoft.


Is a point not a zero length line?

edit: it's going to have to be line segment isn't it. Since nobody drags infinite lines across a screen.


No. A line (or line segment, as was clearly meant) has a non-zero length by definition. If it had a zero length, it's not a line anymore. It is a point.


This has irked me because those who don't know anything about touch screen technology don't seem to understand that 'taps' are actually small swipes. The sensors have a far higher resolution than your fingers ability to stay still, so the system rounds down small 'swipes' based on x time over y legnth into what the user meant as taps. It senses the touch down (start point) and the touch up (end point) which may or may not be a zero length swipe or even a small distance swipe.

At a a hardware level and strictly speaking, taps are swipes, Apple just abstracted tiny swipes away into a tap function.


It irks me that some people who don't know anything about the physics of touch screen technology and don't seem to understand that 'taps' are actually small changes of capacitance of an array of capacitors. [0]

At a a physics level, and strictly speaking, taps and swipes don't exist.

Patents are pragmatic and full of abstractions. You are not required to specify a patent at every level of abstraction all the way down to its mathematical or quantum properties.

(I have to read a number of mechanical patents each week as part of my job).

[0] http://en.wikipedia.org/wiki/Capacitive_sensing


This is very interesting, thanks for the perspective.


We only get to argue that once :) http://news.ycombinator.com/item?id=4085613


Even in math, a line goes through two distinct points. You can't define a line with just a single point. And a segment is a piece of a line with a measurable length.

So, in English or in Math, the answer is no.


This has been discussed here before, but no, in common English usage, a point is not a zero length line. Maybe in mathematics, but not in everyday English as the judge was using the terms.

Don't take my word for it, draw a dot on a piece of paper and ask ten non-geeky people, "Is this a line?" :-)


Actually, it's not true in mathematics either. A line is something which has one and only one dimension, and a point is something which has no dimension. A zero length line would not be a line, as it would have fewer than one dimension. So, there is no such thing as a zero length line.


Lines are infinitely extended. Maybe you meant a line segment. Line segments have a minimum of 2 points.


Line segments have a minimum of an infinite number of points.


I assume they meant two end points (which cannot be the same point) to which the line segment is bound.


That's one of the paradoxes of Euclidean geometry, where a line/line segment is made up of an infinite number of points, but those points have no length or width, and infinity times 0 is still 0, so technically a line should have no length. Clearly, it does not.


Infinity times zero isn't zero, it's undefined.


> 'Another Spanking'

What does that mean, exactly?




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