Apple, Microsoft, Others Sued For Patent Infringement Over iPod, Zune Touchpads
from the someone-call-synaptics dept
And… here we go again. A company named Tsera LLC, a Texas company that has no products or online presence, and which certainly appears to be a typical patent hoarding shell company has now sued a bunch of companies in East Texas (of course) for patent infringement. Of particular interest are the claims against Apple and Microsoft. The patent in question, 6,639,584 is for some sort of touch interface, and the lawsuit claims that the iPod and the Zune both use touchpads that infringe on the claims in the patent. Of course, the patent itself seems to cover some slightly different things, as the article notes the system doesn’t have visual feedback and users don’t need to view the device. That’s not quite the way portable music devices work… Once again, this appears to be a blatant money grab by some folks who had nothing to do with the actual advancement in this space.
Comments on “Apple, Microsoft, Others Sued For Patent Infringement Over iPod, Zune Touchpads”
The name of the game is in the claims in reference to the specification. They can easily say no since the claims require the device to:
“wherein at least one of the plurality of patterns corresponds to a predefined function that is performed only for so long as contact is maintained with the touch-sensitive surface”
So the function is “performed only for so long as contact is maintained with the touch-sensitive surface”. As long as some of the functions are performed while contact is not maintained with the touch sensitive surface the devices wouldn’t be covered under this patent. Therefore, the patent really doesn’t cover an MP3 player because the function is performed while contact is not maintained with the touch sensitive surface …
Re: Re:
Indeed, the primary investigation needs to start with the claims. The claims don’t tell the whole story, of course. You have to factor in the meaning of the words in the claims (which will only be determined after a Markman process), any means-plus-function elements in the claims that must be mapped back to elements of the specification, as well as any file-wrapper estoppel issues (which would require going to the file, which is not part of the patent).
However, you do need to read the claims carefully. The argument that:
As long as some of the functions are performed while contact is not maintained with the touch sensitive surface the devices wouldn’t be covered under this patent.
doesn’t hold, because that’s not what the claim says. The claim says:
wherein at least one of the plurality of patterns corresponds to a predefined function that is performed only for so long as contact is maintained with the touch-sensitive surface (emphasis mine)
So as long as there is at least one pattern/function combination where the function is performed only as long as contact is maintained, you potentially infringe this claim. The function might be fast-forwarding (only when touching the button) or scrolling with a wheel (scrolling stops when you lift your finger), etc.
The function is the playing of MP3 songs, as stated on col. 5 lines 40-50.
Nice
Wonderful that the big boys are getting hit. Go for it and extract some out of them. They are ripping of the consumer anyway. Even better if Apple’s ego gets hurt a bit.
I don’t know Mike. I usually agree with you, but in this case, as I read claim 1, it should cover an MP3 device, for example, using a circular motion to scroll through a song list. That function pretty much only exists while you are making the circular motion. The bigger issue for this patent, in my 10-second review, is obviousness in light or prior art. I mean, the only difference between this and the Palm Pilot, if I recall correctly, is the difference between using a stylus and using a finger.
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Even if obviousness knocks out claim 1, that doesn’t really affect the remainder of the claims. Remember that if a device infringes any one claim, it infringes the whole patent.
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Doctor Strange – re dependent claims and obviousness. Have you even read the dependent claims? The invention of claim 1 where the device is a music player. These dependent claims do not add anything that will save them. I hear you on your theory of patent law, but in this case, it is clear that the claims will all stand or fall with claim 1 (or claim 10, which I admit I have not reviewed)
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“Remember that if a device infringes any one claim, it infringes the whole patent.”
What an amazingly Catholic way to right a law…
Re: Re: Re: Re:
Yeah yeah yeah, right != write….dammit
What would be really nice, is if some of these companies, with the vast amounts of money that they have, took on the fight against ridiculous patents.
Sure, they may both be evil and money-grubbing, but even evil, money-grubbing corporations may be counted upon to protect their interests.
Re: Re:
Unfortunately they can’t battle against ridiculous patents since they have so many themselves…
Doctor Strange – re dependent claims and obviousness. Have you even read the dependent claims?
Yes, I read all the claims, unlike you. I also read my post, which didn’t mention dependent claims specifically at all. Further, not all the dependent claims are limits on the type of device – others are on refinements to the pattern-capture technique to support imprecision, translation, rotation, speed, and so on.
Indeed, the dependent claims limiting device type may not save them, especially in the light of KSR (pre-KSR these sorts of claims were much more valuable because the TSM test for obviousness was interpreted more stringently). However, the TSM test is still applied, albeit differently than before, so you can never be sure.
Thanks!
For posting yet another wonderful example of why IP law in America is in dire need of an overhaul.
Could This Be Something Like The Old GO PenPoint?
You might want to look at:
Robert M. Carr, “The Point of the Pen: GO’s vice-president of software examines the new PenPoint operating system,” BYTE, Feb. 1991, p. 211 et. seq.
It is not cited in the 6,639,584 patent’s bibliography. This article describes a windowing operating system with handwriting recognition and gestures, using a stylus and a kind of touchscreen instead of a mouse (electromagnetic interaction between the screen and a special stylus, rather than pressure). The developers had apparently been working at the system since 1987, so there may well be earlier publications.
Quite specific patent
The underlying invention was clearly conceived quite specifically: It’s the use of gestures to control (a) a music player; (b) without having to look at the player. The restrictions to music players appear in dependent claims (e.g., 6); the lack of a need to look appears in an independent claim (10).
Think back to music players in July 1999, when this invention took place. We’re two and a half years before the first iPod is introduced. The UI’s on existing MP3 players are – pretty dreadful. Tiny little buttons, maybe a tiny little screen. Doing something as simple as going to the next song requires picking up the device and looking at it. As is clear starting with the Abstract, *that* is the problem the inventor set out to solve – and he did.
Yes, in drafting the patent, the lawyers did what they always do: Included much broader claims (like 1) . Those probably don’t survive a challenge on prior art grounds. No big deal, as long as there are also specific claims that survive – as there might be here.
I certainly wouldn’t say this was an obvious thing to propose in 1999. Touch screen interfaces barely existed except as experimental high-end stuff. People looking to the future thought about high-end applications, or at least about *fixed* applications, like kiosks – though gestural interfaces for those would have been very unlikely. Palm and Go used gestures as a small addition to a text-based interface – so, yes, the stylus made a big difference. The idea that you could apply this kind of interface to something like a music player was really quite clever – and when Apple shipped it a couple of years later, was treated exactly that way.
Maybe there’s more specific prior art out there. The defendants will certainly search for it. The whole business of usage without looking will have to be examined. I don’t recall Apple ever describing this as an advantage of the iPod, for example.
One can disagree with the whole notion of patents, and one can disagree with many aspects of the patent system as it currently exists. There are many patent lawsuits based on really bad patents. To me, this isn’t one of them. What appears to be an individual inventor set out to solve a real problem he ran across in his daily life, and came up with a novel used of a leading-edge technology. I don’t know if he tried to sell his idea to anyone. Perhaps we’ll find out that he actually approached one of the companies being sued. (It certainly wouldn’t have been Apple – in 1999, the idea that Apple might make an MP3 player would have been news to everyone with the possible exception of Steve Jobs and a few close associates.)
My guess is this is one that gets settled. (I, personally, would rather see a settlement for some reasonable amount with the inventor. But we’ll get a settlement at some value with a speculator. Another unfortunate aspect of the realities of today’s patent system.)
A patent on gestures ?
There is a lot of prior art in the gestures area …
What’s next, a patent on hand waiving ?
Just one day...
All I ask for is just one day that I can surf/stumble through the internet without hearing another example of a greedy person/group of persons/company trying to make a living off the extremely outdated copyright laws and the innovation of others…
Eastern Texas = Okay
The reason all these cases are filed in E.D.Tex. is because the average E.D.Tex. judge hears nearly 50 patent cases a year, compared to the national average of four. Given how extremely complicated patent litigation is, this can only be a good thing.
Re: Eastern Texas = Okay
+1 funny
the truth about trolls
“appears to be a typical patent hoarding shell company…”
There is no requirement that the inventor commercialize the invention. Many small entities do not have the funds or management skills to commercialize their inventions and cannot obtain them unless they can first get an injunction. It then becomes a chicken and egg game. We disclose, we get exclusive rights. That was the deal. Without exclusive rights we cannot obtain full value for our inventions and face increased difficulty in getting funded so we can commercialize them.
“Once again, this appears to be a blatant money grab by some folks who had nothing to do with the actual advancement in this space.”
Nothing to do…well, if they own the patent then by definition they were the inventor of the technology in question. Duh!!
Call it what you will…patent hoarder, patent troll, non-practicing entity, patent extortionist, etc. It all means one thing: “we’re using your patent and we’re not going to pay”.
For the truth about trolls, please see http://truereform.piausa.org.
Re: the truth about trolls
Oh please …
dont act so stupid
Re: the truth about trolls
Please present a SINGLE shred of evidence that this is about someone using someone else’s technology and refusing to pay.
We await patiently.
Thanks.
Re: the truth about trolls
the whole point of patenting something is so you can profit from commercializing it. If you aren’t going to do that, you should not be able to apply for/keep a patent.
Response to Jerry Leichter, Jul 21st, 2009 @ 4:12am
I think you err fundamentally in thinking that something has to be commercially viable to be valid prior art, and consequently to provide a scaffolding for obviousness. On the contrary, science fiction, if it be specific enough, can be prior art. The fact that an idea is science fiction does not prevent it being added to the common store of ideas. I think one might fairly describe the Carr article, cited in my previous post (Jul 21st, 2009 @ 2:25am), as a “highly optimistic prospectus,” falling somewhat short of science fiction. For example, Vannevar Bush’s “Memex” article actually predates the stored program electronic computer (ENIAC did not qualify as such), but it gave a reasonably specific description of how hypertext was supposed to work. The Carr article refers to “a standard rich gestural language,” which “work[s] consistently across all applications…” (p. 213). Likewise, “PenPoint is designed primarily for pen-based input,” and the article envisions the installation of progressively better handwriting recognition engines, in a manner transparent to the application programs. (p. 212). This expansive description, not the product actually sold, is the measure of prior art.
Neil J. Rubenking’s PIANOMAN (1986, 1988) treats a music file as just another kind of document, to be handled in much the same way as any other document, with only minor deviations.
I have in front of me, a copy of Kris Jamsa’s _Concise Guide to Microsoft Window 3.11_ (1992), a manual distributed with the bundled version of DOS/Windows. It describes both a media player and a sound recorder. Both are in substantially modern form, though the media player is not stated to support video at this date. The manual also describes a file-extension-association manager, again in substantially modern form. Calls for such a capability in the Macintosh file browser had appeared in BYTE as early as 1989. If we try to reconstruct the world in which Robert Carr was writing, it is a fair inference that “all applications” would have included sound and music applications.
See my previous discussion, under the heading of “Prior Art and Wiliton, #13”
http://www.techdirt.com/article.php?sid=20090312/1711214100#c304
Re: Response to Jerry Leichter, Jul 21st, 2009 @ 4:12am
Your comments are … confusing. You start off by talking about prior art as providing “a scaffolding for obviousness”, but prior art and obviousness are *different* ways a patent can be faulty. If you can find prior art, you would certainly want to cite it, since for at least the last 30 years, the courts have effectively gutted claims of obviousness. Even lacking that – obviousness is inherently much more subjective than prior art, so not something you would want to rely on unless it was your only alternative. Fundamentally – if it was so obvious and was also useful, why didn’t someone do it before? And if they didn’t why can’t you turn this into prior art?
As for the rest … I fail to see how any of the examples you list have to do with the specific notion of using gestures to control a music player, and specifically with the intent of making such control possible even without looking. The fact that gestures, media players, and all the rest were mentioned and even built before this invention has nothing to do with the patentability of this specific combination of features. Few, if any, inventions are completely novel, with no connections to what went before. Most are re-arrangements of existing components, or new uses for them. As long as they can pass the various relevant tests – including not being obvious – they can be fine patents.
Finally, prior art is much more specific than a description in some story. There have been descriptions of flying cars for a century; you could probably claim that those were based on stories of flying carpets! Given all that, you couldn’t now get a patent on the concept of a car that flies – but in practical terms, any specific innovative technology that lets you actually build a flying car will be completely unaffected by all those stories. Stories that contain enough detail to really matter are rare. Clark’s invention of the use of geosynchronous orbit for communications satellites is a great example of an exception.
Further Response to Jerry Leichter, Jul 22nd, 2009 @ 7:43pm
You ask: “why was it not done earlier…” As I have said before, the obvious answer is that it was not economically feasible, and it became feasible because computers became approximately a million times cheaper in twenty years. Most software developments are invented many times, and forgotten many times, before they become economically feasible with falling hardware prices.
In the end, the only court which matters is the Supreme Court, and one case, such as KSR v. Teleflex can supersede hundreds or thousands of lower-court rulings. KSR v. Teleflex was a ringing affirmation of obviousness. It is well within the scope of an ordinary practitioner to practice “design-by-comparison-shopping,” that is, a systematic feature canvas. Things like the PC-SIG volumes, or, at an earlier date, the various Digital Electronics Corporation manuals, are significant because they were widely available, and contained notices of a wide range of software, organized by thematic categories. A person who was ordinarily industrious in reading and note-taking would have put together a composite system. Similarly, at the relevant date, BYTE had a circulation of about half a million. Someone who was not conversant with what had been reported in BYTE was, almost by definition, not “a person having ordinary knowledge…”
Suppose that Robert M. Carr had been teaching a college course at approximately the relevant date, and suppose that he had handed out reprints of his BYTE article, and put the Jamsa Windows 3.11 manual on reserve in the library. Suppose further, that he had given an assignment (probably a group assignment) to fully apply the gesture system to Windows. Do you honestly think that if one group had failed to cover the media player and the sound recorder, which were plainly listed in the table of contents, Carr would not have docked them a few points? A few years earlier, the standard Macintosh-type command architecture, as copied by Windows, had started to supersede the various particularistic command architectures of various application programs, eg. Wordstar. It was not exactly a novel concept to impose a uniform user interface on a collection of programs of diverse function, and Carr’s statements in his article were reasonably indicative of an intention to do so.
The patent does not recite any method of obviating the need for visual feedback, save to make the screen sufficiently large. It does not describe any system of tactile feedback, such as might reasonably have been inferred from a study of the various writing systems developed for use by the blind. In essence, the patent seeks to claim a result, not a method.