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12/19/2012
10:08 PM
Larry Seltzer
Larry Seltzer
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Apple Must Settle With Samsung

Apple Needs To Cut The Patent Nonsense. If Apple really thinks they need to sue the competition out of the market then they must think they're in worse shape than anyone else thinks. Recent legal setbacks, including the reexamination by the US Patent and Trademark Office of the 'pinch and zoom' and other patents, have the potential to embarrass Apple severely and embolden the competition. Now's the time to scale back in their settlement negotiations.

Apple received embarrassing news late yesterday when the US Patent and Trademark Office notified them that one of the key patents which a jury found to be "willfully infringed" by Samsung in a trial earlier this year, would be reexamined for validity. The USPTO reexamination was publicized as a notice to the court from the USPTO, owing to the relevance of the decision to the case. See the full text of the notice and order embedded at the bottom of this article.

Apple's U.S. patent 7,844,915 ("Application programming interfaces for scrolling operations"), called the 915 patent in the trial and known colloquially as the "pinch and zoom" patent, describes the touch-and-drag operations for expanding and contracting the view on the display.

Yes, it's only one patent of many Samsung was found to violate, but it was one of the clearest of claims against Samsung (as proxy for Google, who really implemented the behavior). Pinch and zoom is something ordinary people can relate to. And the invalidation of the patent would serve to dim further the mystique of Apple's reputation for innovation.

Most people hadn't ever heard of smartphones before the iPhone, except maybe for BlackBerry, but in fact other products had been doing many of the things the iPhone did for years. Windows Mobile — not Windows Phone, but a much earlier attempt at a SmartPhone OS by Microsoft — may have been an overall-terrible product, but it had touch-screen and gestures before the iPhone was released.

Now it seems that pinch and zoom may not be all that new either. The specific Apple patent claim used in the trial will be reexamined by the USPTO on two grounds: first, that it was already anticipated in an earlier patent, 7,724,242 ("Touch driven method and apparatus to integrate and display multiple image layers forming alternate depictions of same subject matter"), and as unpatentable in light of other works, including a doctoral dissertation from 1991.

It's hard to come up with something really new in computing. Often what you think you invented was probably done by IBM in the 1970's when a lot of real genius work was done, and not much of that was patented.

And this isn't isolated bad news. A couple weeks ago that other patent claims by Apple, also used in the trial, were invalid. And then a few days ago the trial judge ruled against Apple's motion to block sale of the infringing Samsung products, and did so on grounds that mitigate the claimed damages. As the patents on which the judgement is based fall, Apple's position is weakening.

Their only reasonable avenue at this point is settlement on undisclosed terms. Samsung would surely be willing to do so in a way that puts legal matters behind it. And then the companies can compete for customers based on the merits of their respective products. Maybe that's not the bright future Apple envisioned, but it's a fair one.

Pinch to Zoom Patent Invalidated

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