> The judge said that HTC's "arc unlock" feature - which also involves a predefined gesture along a path shown on-screen - would have infringed Apple's technology had it not been for a device released in 2004.
No, no, no. It is clearly obvious, the fact that there happens to also be prior art just adds insult to injury. If there had not been prior art, it would still be a frivolous, trivial patent.
This is exactly what's wrong with the patent system - you don't need prior art to tell you something is obvious and should be unpatentable.
I perfectly agree. But how do you prove in court that it was obvious? Most countries do have that paragraph in their legislation stating patents need to be non-obvious to someone of similar skill. But you almost never see that being tested in court, because how the hell do you prove it?
One of the big problems with the patent system is that it tries to implement solutions that are not viable in practice. There's no good, plain, clear, and unbiased way to prove a patent is indeed trivial. Even if we us hackers look at each other and agree that it's trivial.
I'd love to live in a world where innovators of non trivial solutions were rewarded money from others, without punishing these other innovators. But that's not possible to implement in practice!
Imagine someone patenting the vague "drop down menu" for websites. Even if others would put a new twist on the drop down menu, they could still be infringing on the person who had the original patent for a drop down menu, according to the current patent system.
That's kind of how Apple's slide to unlock patent is now. Even if they twist the heck out of that method, it might still fall within Apple's description for a "slide to unlock" method for which they got a patent.
Stuff like this shouldn't be allowed to be patented. But I think people tend to give Apple the benefit of the doubt much more than they deserve, because they were the ones changing the mobile industry in 2007, and now they somehow believe that anything that even remotely resembles what Apple has needs to belong to Apple and only to Apple. But that's not how things should work. Apple should just compete and try to stay 1 step ahead. That's how it's done in all the other industries. They don't try to squash every single one of their competitors with bogus lawsuits because they "compete" i.e. making something "similar".
I don't think this is so difficult. Something has to be nontrivial to practitioners in the relevant field, so just survey a few random software engineers - not some clerks at the patent office.
Pay them for their time, obviously, and that cost should come from the patent application fee.
If this were done the vast majority of software patents existing today would not have been granted. Which is probably why the system wouldn't do it.
You just described a patent lawsuit - both sides bring experts who vouch for their perspective in light of a judge who moderates and then rules on the debate from a general legal perspective.
It's significantly different from a patent trial. In this scheme the patent is not granted - and can't meaningfully affect the market - until it has passed some level of technical scrutiny by a (hopefully) neutral third party. In a trial the patent has already been granted, it's already affecting the work done by engineers, licensing fees may have been paid, and so on. And the evaluation by experts in the trial seems less likely to be neutral.
1. I think the obviousness of an idea might change throughout time. 2. What if one industry is dominated by two companies, in the sense that all the experts are employed by one or the other, then how could they be unbiassed?
There's nothing illegal with being a monopoly. That doesn't mean it isn't wrong. I think in most cases (with exceptions like utilities), not having monopolies leads to a healthier market than having them.
Yes, or changing it from a binary system to a continuum that maxes out at 20 years. Software patent? 5 years. New drug - 20 years. New algorithm (can't patent math of course) 10 years.
I really don't think it would be that simple to make sure that process in unbiased. And that the additional costs wouldn't make patenting exclusive to billionaire companies.
I agree a patent on simple gestures is simply not logical, but working within the constrains of the existing (and in my view, broken) system, I'd like to explore the idea of swipe to unlock, really how obvious is it?
This is a legitimate question, and I'm looking for real answers because these can be useful later on.
What is natural about swiping to unlock? The closest historical analogy I can think of is moving a bolt sideways on a door, but this is tenuous and certainly wouldn't extrapolate as the most natural/expected method of signalling to an electronic device that I'd like it to no longer ignore my touch gestures.
Would the closer analogy be the 'hold' slider as present on music players, including apple's own ipods? (And earlier devices.) Again, why is this the natural choice in lieu of a hundred other ways of telling the device that I'm ready to work with it.
Apple's love of skeuomorphs present many seemingly 'obvious' analogies, but they were usually rare or non existent before, so I'm curious to understand what is the line of innovation.
I think you're approaching the question from the wrong angle. Whether the idea of swipe to unlock is obvious is irrelevant; ideas can't be patented. Only implementations can be patented. Do you think a programmer familiar with touchscreens and mobile development would have difficulty figuring out how to implement swipe to unlock when presented with the idea?
I've already stated that I view the patent system as broken. We agree here.
The question I'm asking is within this broken system. How natural is this gesture? It means without the apple iphone, would we still be using this gesture, would it still be considered obvious?
Given that the Neonode N1 had it first, I suspect that we would.
I think it probably would have come about not long after capacitive touchscreens became the standard input device for phones no matter what. It's the easiest gesture to make that is fairly unlikely to happen by accident when the phone is in a pocket.
The slide to unlock feature is a skeuomorphic design. The sliding lock is a very common lock on doors. I would consider it obvious for that reason alone.
I noted this above, but what is analogous between doors of a bygone era and accessing a touch-based device. Swiping a portion of the screen is the obvious component, but the skeuomorph isn't, I'm yet to see a good rationale for why this is more obvious than the many other opening simple-gesture skeuomorphs that could have been chosen.
I can think over many other more logical/closer skeuomorphs, which forms the basis of my question: was apple's choice a naturally occurring one, or their design choice. This isn't about patents, it's just a mind experiment as to understand if this is as straight forward as it seems in retrospect. (Because good design always appears obvious in retrospect.)
I'm yet to be presented with an answer to this, this is the crux of originality.
On a touch screen, you only have two primitive gestures from which all gestures are composed: Taps and swipes. Composition may be chronological or simultaneous (multi-touch).
This space of gestures is so narrow, that any idea within it can be explored in minutes, therefore any method that just combines these primitive gestures would be obvious.
Additionally, taps can accidentally happen (also obvious), and multi-touch is cumbersome, therefore swiping is the obvious gesture to use for unlocking.
Close to every single toilet door in public areas has a "swipe to unlock" system. It's not even the metallic bolt anymore. It's a block of plastic which you sometimes actually have to "swipe" (put fingers on and drag) rather than grab/pull. And I use it just about every day at work. It's not that dated / uncommon.
What is the patent office's mandate? It is not to grant trivial patents so companies can sue each other. Patents are supposed to be preferable to trade secrets because they make knowledge public in exchange for certain protections, and they encourage innovation in fields that require heavy investment.
It would not matter if slide-to-unlock remained a "trade secret" and the investment in making that feature is low enough that they would do it, even if they were never granted patent protection.
I think the problem is that it's impossible to determine what is obvious post-hoc. The next best thing is "hey, was someone thinking of this at the same time?"
I'd suggest that any independent invention between filing and grant, that is, during the period when the patent is still secret, should automatically render the subject of the application to be obvious and unpatentable.
No, no, no. It is clearly obvious, the fact that there happens to also be prior art just adds insult to injury. If there had not been prior art, it would still be a frivolous, trivial patent.
This is exactly what's wrong with the patent system - you don't need prior art to tell you something is obvious and should be unpatentable.