Many Patently Apple fans emailed me wondering why we weren't covering the "big story" about Apple's "pinch to zoom" patent being deemed invalid. The bottom line for not covering it was because there was no definitive ruling. Most sites were claiming that Apple's pinch-to-zoom and rubber-banding patents had been found to be invalid; that the US Patent Office outright rejected Apple's patents. Yet that's not what took place in the last week, and these wild claims will eventually be seen as little more than a pipe dream crafted by the anti-Apple camp. There's nothing new to that old story.
The only action taken by the US Patent Office last week was to publish a "first office actions" notice to Apple rejecting the patents, which according to FOSS Patents, are not final decisions. These first office actions are the result of a filing made by a law firm with no disclosure of the client. So the very complaints could have very well come from the Google-camp themselves knowing the press frenzy that would be gained by such an action – and in the end, they got just what they wanted. The press frenzy is clamoring that the patents are in fact invalid and that the case brought on by Apple is dead in the water. Yet in the bigger picture, that's just a statistical fantasy.
According to a Bloomberg report published last Thursday, "The Apple patents have not been held to be invalid by a court, and certainly not by an appellate court, so they are still enforceable," said Robert Resis of Banner & Witcoff in Chicago, who's not involved in the case. "Just because there's an action going on in the patent office doesn't render them unenforceable." The report made it clear that it could take years before we finally find out how this plays out.
In fact, if historical statistics prove anything – then the likely outcome of re-examination will likely still favor Apple. Bloomberg's report further stated that patent office statistics from 1981 through June 2012 point out that the patent-owners getting all of their patent claims confirmed is in 22 percent of re-examinations, while all of the claims canceled only 11 percent of the time. The rest involve modifications of the patent, which in some instances means the patent owner changes the wording of the patent, removes elements, or even gets to add more claims.
You just have to do the math to see the chances of Apple's patents being rejected outright. If 22 percent of the times the claims are reconfirmed and 67% of the time it means that the patent claims just have to be modified to be accepted - then that only leaves a measly 11 percent chance that the patents will be outright rejected. I don't know about you, but I like Apple's odds.
For the record, Patently Apple found those statistics quoted by Bloomberg at the US Patent Office and page 2 of that report is presented to you above.
In respect to the arguments filed with the US Patent Office, Florian Mueller of FOSS patents boldly stated that "some of the rejections are based on rather far-fetched theories."
In the end, depending on how long this process goes on, Mueller states that "we will at some point also hear about procedural steps (including reconsiderations, appeals etc.) in which some of the tentative rejections are retracted. It will take time, but it will happen. There will be some back-and-forth and some roller coaster rides, and in the meantime, tentative rejections don't affect the enforceability of a patent claim.
At the end of the day, all I heard this week was a lot of noise from bloggers leaping to conclusions and falling into Samsung-Google's top notch psychological warfare. In the age of instant online judgements on any topic, Google has become a master of this type of hype. Apple and specifically Apple's CEO Tim Cook will have to begin to counter the Android camp's tactics or risk the tide of public opinion further turning on them.
Apple was out to prove that Samsung was a copycat of their 2007 iPhone and won their case in a California courtroom. Yet somehow the Google-Samsung camp appear to be winning a public opinion war making Apple look like the robbers of past technologies and constantly repeating like parrots that Apple never invented a thing. Even though the definition of insanity is someone repeating the same thing over and over again hoping for a different outcome – they keep on blurting the same nonsense like zombies. Why, because in this historical phase of the internet revolution, mob-thinking rules.
Hopefully Apple's executives will wake up and begin countering their competition's tactics because it's been said many times that "perception is reality." And eventually that could translate into losing sales. Yet in the short term, be assured that what you heard this week in the press was simply an out of control news frenzy that has no real bearing on Apple's case against Samsung and may not for years, if ever.
Earlier this week we published a report titled "The European Commission Set to Charge Samsung for Suing Apple" In fact a new report published today presented a strong statement made yesterday by the European Commission's commissioner as follows:
"Intellectual property rights are an important cornerstone of the single market. However, such rights should not be misused when they are essential to implement industry standards, which bring huge benefits to businesses and consumers alike."
The commission informed Samsung of its preliminary view that the company's seeking of injunctions against Apple for allegedly infringing "standard-essential" patents in the EU amounts to an abuse of a dominant position. That's the real face of Samsung, not the poor little victim portrayal played out in Apple's evil lawsuit that their PR firm has cooked up for the press.
Some will say that Android extremists and anti-Apple camps are temporarily enjoying their moment in the sun. That may be true, but their motives are well known by those siding with Apple. These anti-Apple camps just can't get over Apple's continual innovation and the late Steve Jobs who rubbed it in their faces for the past decade. On that count I say: That's just too bad.