This time it’s the so-called “pinch and zoom” patent getting rejected by the US Patent and Trademark Office (USPTO), and this is a big deal since that patent was one that Apple used to achieve that huge $1 billion verdict against Samsung in a California kangaroo court last summer.
Now what happens? Does the court in California go back and subtract all the damages that the jury awarded to Apple based on this patent that Apple should never have been granted?
Apple took a big victory lap after that ruling but it’s looking like maybe it popped the champagne too early.
The ruling by the USPTO is not final, and no doubt Apple will appeal the decision, but suddenly Apple isn’t looking so powerful. In fact, it is looking a bit, well, ridiculous. (And that’s the kind word for it.)
The patent was struck down because the USPTO found prior art. Meaning Apple didn’t actually invent the stuff it claimed to have invented. It copied it from others, then went and got a patent on it anyway, and then used that bogus patent to sue rivals.
Worse yet for Apple, this new ruling from the USPTO comes just two weeks after the USPTO smacked down another of Apple’s patents, one that related to multitouch and was known as the “Steve Jobs” patent.
I wrote at the time that Apple’s “thermonuclear patent war” was a farce. Now that farce seems even sillier.
These Ideas Were Around Long Before Apple ‘Invented’ Them
Thing is, did anyone really ever believe that Apple invented things like multi-touch and pinch-to-zoom? Those innovations were all floating around the industry for years before Apple suddenly claimed to have invented them.
For just one example, here’s a video of Jeff Han, a scientist at New York University, showing off a multi-touch screen at a TED conference in February 2006 – a year and a half before the iPhone came out. (Han founded a company called Perceptive Pixel, and sold it to Microsoft in 2012.)
Groklaw’s Analysis
Best analysis of today’s debacle comes (again) from Groklaw, which is covering the hell out of this story and ripping the jury in the California case as a bunch of “goofballs” who ruled against Samsung “after a nonchalant few hours of deliberations, which apparently did not include spending effort on whether or not this was a valid patent.” Groklaw calls the California ruling “a gross miscarriage of justice.”
One of the stunning things about the California verdict was that this was a really incredibly complicated case involving lots of gorpy technology and legalese, and yet the jury deliberated for only three days. One law blogger commented at the time that it would have taken him more than three days just to understand all the terms in the verdict – and he’s a lawyer! “Did you guys just flip a coin?” he wrote. The jury instructions alone were more than 100 pages long. A law professor told me at the time that it would take a day just to go through the instructions, though “they skipped that.”
The jury foreman in the California case was a guy named Velvin Hogan, who went around giving lots of interviews after the verdit and who told reporters that he and his fellow jurors didn’t think it was their job to determine whether the patents at issue were valid or not – though in fact the judge had told them to do exactly that.
Money quote from Groklaw:
“So here’s a question. Does Samsung get any of its money back? I mean the money it spent and is spending to invalidate this stupid patent? The money it spent on trial over this stupid patent? The money it spent finding the prior art that Apple should have found before filing for this stupid patent? No. Nothing in US patent system is that fair.”
Why This Is Scary
Think for a moment about the implications of what just happened here.
What this tells us is that patents are granted so readily and with so little review that a company like Apple can waltz into the USPTO with inventions that other people invented first and still get patents granted on those inventions. Then Apple can use those bogus patents to sue rivals, cost them hundreds of millions or even billions of dollars in court judgments, legal costs and lost market opportunities, and then – wham – even if it all goes up in smoke the damage has been done.
Basically the USPTO is so swamped that it cannot properly review patent applications, so it’s just tossing that work to the courts and letting people work it out in lawsuits.
Apple has more than $100 billion in the bank. It can just keep doing this for years.
And the real victim, ultimately, is all of us.
