Apple's new patent infringement case against Samsung began last week. Before the trial began Samsung tried to stop a video from being shown to the jury because it showed Apple products in a light suggesting that "Apple's products are innovative and patentable." Thankfully Judge Koh overruled Samsung objection. As the trial began, Samsung focused on trial theatrics with trying to paint Apple's Executive of Worldwide marketing as being panicked by a silly Samsung ad. Then jumped to Apple declaring a "Holy War" against Google trying to say Apple battle is really with Google. Yesterday AppleInsider's Daniel Eran Dilger posted an extensive report about Samsung's slavish copying that took years to copy Apple's "Slide to Unlock." Yet today, a European patent expert tries to tear down AppleInsider's editorial. The problem, however, is that the case is being tried in a US Court under US patent laws and standards, not those of the European Union. So why does this European patent expert continually diminish Apple's innovation and US patents.
U.S. Utility Patents
In United States patent law, utility is a patentability requirement. As provided by 35 U.S.C. § 101, an invention is "useful" if it provides some identifiable benefit and is capable of use. The majority of inventions are usually not challenged as lacking utility, but the doctrine prevents the patenting of fantastic or hypothetical devices such as perpetual motion machines.
The patent examiners guidelines require that a patent application expresses a specific, credible, and substantial utility. Rejection by an examiner usually requires documentary evidence establishing a prima facie showing case that there is no specific, substantial, and credible utility.
European patent law does not consider utility as a patentability criterion. Instead, it requires that to be patentable an invention must have industrial applicability.
In considering the requirement of utility for patents, there are three main factors to review: 1) operability of the invention; 2), a beneficial use of the invention; and 3) practical use of the invention.
Burden of proof during prosecution: During patent prosecution, the disclosed utility is presumed valid. The patent office bears the burden to disprove utility. The standard the USPTO uses is whether there is a reasonable doubt that it would lack utility from the perspective of a person having ordinary skill in the art. If the examiner shows evidence that the invention is not useful, the burden shifts to the applicant to prove utility. The applicant can then submit additional data to support a finding of utility.
This is why Samsung has tried on several occasions to invalidate an Apple patent and why we posted a report on this in 2012 titled "Cries of Apple's Patents Being Found Invalid a Nice Pipe Dream." Even Florian Muller agreed to the fact that the invalidation of certain Apple patents was not final and in many cases Apple's patents have been reinstated and others are still in the appeal process. So as long as Apple's patents remain valid as utility patents in the US, they can be upheld in appeals to higher courts.
European Patent Standards in this Case are Irrelevant
I appreciated Mueller's report this morning in pointing out a 1991 video concerning the history of toggle switches as presented below. Yet if it was that simple, why did it take Samsung years to perfect copying Apple's invention? Apple's approach had no "on/off" toggle switch visual. Apple had refined the touch mechanism. A "method" is patentable under a utilty patent in the US.
In fact Apple was recently granted an original patent specifically relating to slide controls and slide to unlock specifically. While it took many years to get approved, the US Patent Office granted Apple that invention. It's a valid patent supporting Apple's iOS feature. It's irrelevant if the European Union doesn't consider this valid. Of course they see their European inventors as the only true inventors (though that's just me being sarcastic). But in the US, that's irrelevant.
Mueller is stuck on this point about Apple's patents really being weak and useless. Mueller states that "In the rest of the world, patent cases are typically adjudicated by judges who hear such cases all the time and acquire some understanding of technical issues. In some cases there are even technically-trained judges. For example, each five-member panel of a nullity (invalidation) senate of the Federal Patent Court of Germany has three technical judges (a majority). Those judges have degrees in fields like physics and engineering.
The way the process works in the U.S. is, however, separate from the question of whether a patent is valid and infringed under U.S. law. Once a case goes to an appeals court, there won't be any jury. To the extent that trial judges overrule juries, they also have to focus strictly on the actual merits."
Yes Mr. Mueller, that darn stupid US jury system just keeps getting in the way of Samsung's desire to continually copy Apple's inventions. If Samsung wants to do business in the US then they have to swallow that Utility Patents are valid in the US. And even on appeal, if they're recognized valid patents that have been re-examined and passed, then they won't be overturned that easily on appeal to higher courts.
Do I personally think that sophisticated patent trials should go the way of the European method where a jury isn't involved? Yes, I actually do in some ways. It's silly to think that your average Joe could figure out the finer points of a patent. Yet how we feel or what our opinions are happen to be meaningless under today's US system. So continually using a false equivalency about the European system being superior is just an exercise of Mueller's choosing in justifying Samsung's right to copy Apple's innovations.
I deeply appreciate Florian Mueller's patent expertise. This isn't to question his credentials, as that would be futile. Yet I don't have to appreciate his constant comparison to the European system being better repeatedly.
Mueller's Magically Intelligent Fingers Theory
On another note, sometimes Mueller's analogies are more funny at times than they are useful. In a few of his latest reports he continually barks up a weird tree. According to Mueller "a patent holder doesn't own an end user's mind, eyes or fingers." Trying to wish away a valid US patent for pinch and zoom based on "you can't claim a two-finger pinching gesture per se, much less the mental processes of a user," as Mueller argues, is a bit much.
Perhaps this is why the US has a jury system. When patent experts make the argument that unique and distinct gestures to control a specific gesture to a UI function like pinch and zoom aren't patentable because somehow finger movements are natural and a mental process can't be patentable, we've lost our way.
Imagine going to court and telling the jury that you grabbed a gun, but somehow your fingers all by themselves naturally pulled the trigger. That, by golly, means you should send the murderer's fingers to the guillotine, while saving the murderer because he shouldn't be held responsible for what his fingers do. It's a mental process separate from the body. Yeah, sure, that'll fly in court.
If pinch to zoom wasn't unique, then why didn't Samsung have this feature or gesture on their so-called smartphones prior to the iPhone? Were end users continually trying to naturally use pinch and zoom on their old Samsung smartphones but foiled because Samsung just didn't have the technical know how of how to pull this off? Were smartphone users around the world using this natural finger gesture phenomenon on their phones prior to the iPhone? Ha, how ridiculous.
Apple created unique touchscreen getures like "Pinch and Zoom" a reality and that's why it's a protectable and a valid invention in the US. I wish European patent haters as a whole would just get over this. Okay, now I'm dreaming.
Apple painstakingly created gestures on a multitouch display in ways that had never been put together on a smartphone in a total package of touch instructions before. In the US, they were all patentable methods. It's why Apple's iPhone completely revolutionized the smartphone industry. It's why it turned the smartphone industry on its head. It did all of this in the face of the European's great body of technically superior patents that just couldn't stand up to the iPhone. Apple's inventions, legal US inventions, led the way whether they pass the smell test in Europe or not.
In the end, I'm hoping that Florian Mueller, the patent expert that we all appreciate, will stick to what's relevant in this US case and stop consistently interjecting what isn't relevant from the European patent system's viewpoint. In this case, Samsung and their legal team have to play by US standards and that's all that really matters.