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USPTO invalidates Apple's "rubber-banding" patent asserted against Samsung

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Re: USPTO invalidates Apple's "rubber-banding" patent asserted against Samsung

#51
post #42
post #21

Earlier quoted context omitted.

We're talking in the context of a court case involving two enormous multinational corporations going at it for over a year and a half with probably another half-year to go, minimum. The "little guy" can't even afford to sit in the bleachers of this fight. If some "little guy" actually had filed these patents he'd have been bankrupt a year ago. There's probably a patent regime that actually would protect "the little g…

If you had to pay up front on the "value" of the idea, a little guy (be it a solo person or small company) could never file a truly novel patent. That would be even worse than the system now where you could patent it but not afford to litigate (but you would be able to sell it or if it's a great case find someone to take it on contingency).

In my mind, the little guy would patent with a small declared value - so on the downside they wouldn't be able to litigate for large amounts. But they would have a defensive patent, and that patent would also have value for larger acquiring companies because if they believed in the validity of the patent they could apply for revaluing at higher price (at which point there would be extra funding to make sure it is valid).

Re: USPTO invalidates Apple's "rubber-banding" patent asserted against Samsung

#52
post #20

Earlier quoted context omitted.

That also completely screws the little guy, which is one of the big reasons the USPTO is said to exist.

I would also love to have 1 sq mile of land in downtown Manhattan on which to develop a high-rise. But I'm just a little guy. The darn property tax system is set out to screw me. This is really the whole reason that corporations were invented: so that people could pool their resources together to achieve things that a single person could not achieve. In fact, they used to just be temporary and when the original state…

@andrewcooke: There is an analogous situation to property taxes though -- Rezoning a property. If you can acquire land zoned for something cheaper like residential or agriculture and get the city to re-zone it to commercial it's almost always worth a lot more. Overnight the property is worth a lot more and the property taxes will jump, so you'll either need to get the money to develop it yourself or sell it off to a developer who can do so.

And as far as the cost of entry, there are countless fields where patents could only conceivably be filed by someone with a lot of capital: auto, aerospace, medical, pharma, etc. There are certainly lone inventors working in these spaces trying to file patents but it's unlikely they're working on stuff where you need access to enormous wind tunnels or a medical testing population.

EDIT TO ADD: And aren't we as software developers going on and on about how software patents are worth anything? The cost of entry isn't very high at all and therefore they'd be worthless. Patents were supposed to protect the little guy from losing his large up-front research and development costs to the big established guys.

Re: USPTO invalidates Apple's "rubber-banding" patent asserted against Samsung

#53
post #51
post #42

Earlier quoted context omitted.

If you had to pay up front on the "value" of the idea, a little guy (be it a solo person or small company) could never file a truly novel patent. That would be even worse than the system now where you could patent it but not afford to litigate (but you would be able to sell it or if it's a great case find someone to take it on contingency).

In my mind, the little guy would patent with a small declared value - so on the downside they wouldn't be able to litigate for large amounts. But they would have a defensive patent, and that patent would also have value for larger acquiring companies because if they believed in the validity of the patent they could apply for revaluing at higher price (at which point there would be extra funding to make sure it is val…

If it's not a valuable patent then big players won't respect it (cheap to litigate) and who will want to acquire it? You'll just be run over.

Re: USPTO invalidates Apple's "rubber-banding" patent asserted against Samsung

#54
post #28

Earlier quoted context omitted.

Years refining this overscroll effect?

No. But the design of their products. If you followed the trial, they told the entire process on how they reached the final design of iPhone. It took them years to make it perfect. Taking inspiration is different, and we all know what samsung did for staying in market. LEGALLY, apple had no choice but to take these silly looking patent to the courtroom. Now is the time when we will see real innovation. I don't know w…

I don't begrudge having patent nukes for deterrence purposes. I begrudge using them offensively.

Re: USPTO invalidates Apple's "rubber-banding" patent asserted against Samsung

#55
Some procedural observations:

1. The rejection was signed by a primary examiner (i.e., someone who has been at the USPTO for awhile and not a rookie) and was approved by a supervisory primary examiner who oversees reexamination proceedings.

2. The rejection is not final (see the unchecked box b near the top of the first page), therefore Apple can and will try to get the examiner to withdraw the rejection.

3. The rejection states that the next "Office action" is expected to be final. I would guess that unless Apple can make a compelling case for patentability OR amend claim 19 --- the only claim at issue in the Apple v. Samsung lawsuit --- to get around the prior-art rejection, the rejection of claim 19 will be made final.

4. If the examiner does make the rejection of claim 19 final, Apple can appeal to a three-person board of senior USPTO officials, nearly all of whom will be long-time patent examiners. If the board affirms the rejection, Apple can appeal to the courts.

5. On the merits, it's helpful to think of claim 19 as an infringement checklist: For that claim to be infringed, every element recited in that claim must be present in the accused product or process [1].

(Infringement analysis treats each patent claim as a multi-part AND statement [2]; the statement must return TRUE for infringement to exist.)

6. Claim 19 was rejected as being "anticipated." This means that in the examiner's view, every single element of claim 19 can be found in a single prior-art reference --- in this case a patent publication by Lira, and, separately, a patent issued to Ording --- and therefore the claim is unpatentable under 35 USC 102 [3].

(If claim 19 is thought of as an AND statement, then in the examiner's view, the AND statement returns TRUE when applied to the Lira reference, and also when applied to the Ording patent [4], and therefore claim 19 is unpatentable.)

7. Perhaps importantly, the examiner's rejections over Lira and Ording were made under subsection (b) of 35 USC 102; that is, the "effective dates" of these two prior-art references were more than one year before the effective filing date of the Apple patent in question. This means that Apple won't be able to try to "swear behind" the references, that is, prove that its invention was invented before the effective dates of the Lira and Ording references [5].

NOTES:

[1] Infringement of a claim can exist even if one or more claim elements are not literally present, as long as the accused product or process has a substantial equivalent of the missing element(s). Note: The doctrine of equivalents is tricky to assert, to prove, and to defend against. See generally http://en.wikipedia.org/wiki/Doctrine_of_equivalents.

[2] See generally http://www.oncontracts.com/how-patent-claims-work-a-variety-...

[3] http://www.law.cornell.edu/uscode/text/35/102.

[4] See generally http://www.oncontracts.com/patent-validity-the-claims-and-st...

[5] See http://www.uspto.gov/web/offices/pac/mpep/s715.html --- scroll down to part II.A.

Re: USPTO invalidates Apple's "rubber-banding" patent asserted against Samsung

#56
post #12

Earlier quoted context omitted.

I'd love to see some sort of punitive damages if a patent you sued over gets invalidated. At a minimum, Apple should need to compensate a portion of Samsung's legal fees.

I don't think that makes sense. It's not Apple's fault that the US patent office granted the patent. Just because they changed their minds doesn't mean Apple is responsible. If anything, the US patent office should compensate both Samsung and Apple for essentially wasted legal fees.

Well, that depends. If the patent was found to not be valid because of invalid intent by the "inventor" (such as known prior art, knowingly stealing an idea, knowingly patenting something that's unpatentable), it actually is the inventors fault... When submitting a patent, the inventor must sign an oath indicating these (and other) things:

> The inventor must make an oath or declaration that he/she believes himself/herself to be the original and first inventor of the subject matter of the application, and he/she must make various other statements required by law and various statements required by the USPTO rules.

Now, it would be VERY difficult to prove the oath was broken. But if it was, it's completely and 100% valid to hold the inventor (here Apple) responsible.

I'm not saying that's what's going on here (or in most cases of an overturned patent), just that it may be Apple's fault. It's not a black and white situation here...

Re: USPTO invalidates Apple's "rubber-banding" patent asserted against Samsung

#57
post #41

Earlier quoted context omitted.

I don't think that makes sense. It's not Apple's fault that the US patent office granted the patent. Just because they changed their minds doesn't mean Apple is responsible. If anything, the US patent office should compensate both Samsung and Apple for essentially wasted legal fees.

Disagree, it actually may make sense. The office is overwhelmed with patents and does not have the resources or people that are experts in that particular field. The author of the patent is supposed to be the world's best expert in their field (they are claiming to have crossed the boundary of known things with their patent, aren't they?) and it should be far easier for them actually check if there is prior art or th…

This is my thinking. The guys pursuing these patent cases typically are well aware that their patents are not non-obvious, and quite often aren't even novel. Lodsys is my typical whipping boy; if they weren't shocked that "click for upgrade" got through the patent office, it's only due to their familiarity with patent trolling. They should suffer damages for using a ridiculous patent in the first place, and they should pay the court costs for the defendants. I'd like there to be an "invalidation with prejudice" that would allow this, if the court decides that the patent is outrageously improper. I think that would both discourage trolling and encourage defending against obviously invalid patents. Otherwise, it's almost always better (economically) to suffer the extortion than to try and fight it.

Re: USPTO invalidates Apple's "rubber-banding" patent asserted against Samsung

#58

Sad. This is not a generic patent. It only seemed obvious now. Its not something that will stop innovation (as people scream about). A scrollbar implemented without rubber-band effect will do just fine. And why was this never implemented before anyways. There is all this hype that "Apple is Bad because they sued Samsung". But considering everything, they had no other choice legally. They had to make a case on some gr…

> But considering everything, they had no other choice legally.

Patents are not Trademarks. Patents are valid and legal even if you don't enforce them (where trademarks become invalid if you don't enforce them).

So no, they did have a choice. In fact, they had 3:

1. They could have not gotten the patent at all. This could open them up to legal liability if someone else got it and sued them.

2. They could have kept it for defensive purposes only. Using it if they were sued for patent abuse (and to prevent others from suing on this idea).

3. They could use it offensively.

They chose #3. So yes, they did have a choice.

Additionally, I love your choice of words for the final sentence:

> What would've you done to protect ideas you spent years refining?

I think it hits the key point. They didn't invent the vast majority of what they are suing over. They just refined it. They didn't invent multi-touch, they just polished it. Now, whether that polish is worth a patent is one thing, but the concept is not.

And that's the absurdity of it all. This is not about protecting invention. This is not about protecting innovation. It's about protecting market position.

And if there's a clearer abuse of the patent system than this, I'd love to see it...

Re: USPTO invalidates Apple's "rubber-banding" patent asserted against Samsung

#59
post #46

Earlier quoted context omitted.

Are you referring to this comment of mine? "So I had an idea the other day for a patent reform: property tax on patents. As long as a company wants to keep the monopoly rights over a patented invention, they are taxed a percentage of the patent's market value each year. They can choose either to pay that tax or sell the patent to someone else. The government would offer to buy any patent for its market value, using t…

possibly, doesn't seem to be exactly like I remember but is quite possibly my memory fail. Although it's not clear in your comment where the market value comes from (e.g. is it essentially the government is the market maker? that seems like a bad idea as central authority is unlikely to understand and price everything correctly). What stops people from understating the patent value? EDIT - I guess main point is - is…

I'm sure it wouldn't be unlike assessors for home value property tax. A bit trickier, but I'm sure it's doable.

Re: USPTO invalidates Apple's "rubber-banding" patent asserted against Samsung

#60
post #53
post #51

Earlier quoted context omitted.

In my mind, the little guy would patent with a small declared value - so on the downside they wouldn't be able to litigate for large amounts. But they would have a defensive patent, and that patent would also have value for larger acquiring companies because if they believed in the validity of the patent they could apply for revaluing at higher price (at which point there would be extra funding to make sure it is val…

If it's not a valuable patent then big players won't respect it (cheap to litigate) and who will want to acquire it? You'll just be run over.

Yes, while it's low-valued it's not much of a deterrent to big players which is a disadvantage (depending on how often small players realistically can afford to challenge the big players legally under current system).

But by defensive usage I mean then at least you know someone else isn't going to patent your key stuff. And once you've got funding/get acquired, the patent could be declared as higher value (and additional fees paid/validation done), and then future litigation to anyone who infringed after that date could be for higher amount.

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