Apple for the day

Steve Lohr has an article in The New York Times about the Samsung patent:

The United States Patent and Trademark Office has decided that one of the smartphone patents at the center of the legal dispute between Apple and Samsung Electronics— which resulted in a jury award to Apple of $1.05 billion— should never have been granted.
The patent office decision is an initial ruling, in a document dated 15 October, and filed electronically recently, and probably will be challenged by Apple  It affects the patent for Apple s “rubber-banding” or “bounce” feature, which makes the digital page bounce when a user pulls a finger from the top of the touch screen to the bottom.
If the patent office ruling withstands challenges by Apple  it could be used to roll back the $1.05 billion in damages in the California case and strengthen Samsung’s hand in settlement talks with Apple  said James E. Bessen, a lecturer at the Boston University School of Law. The patent office’s action, patent specialists say, shows that the office, and not only courts around the world, will be an important front in the smartphone patent wars. These legal clashes mainly pit Apple against companies that use Google’s Android software for smartphones, including Samsung, HTC, and Motorola Mobility, which Google acquired last year. The patent office ruling was first reported by Florian Müeller, a patent analyst and blogger based in Germany.
The decision to invalidate the Apple patent was made under longstanding procedures for re-examining previously granted patents. Under the America Invents Act, which was passed last year, the post-grant review process is being strengthened and applies to patent re-examination requests filed after 16 September.
Patent specialists say the new rules will make it more likely that courts will wait until the patent office has finished studying whether a patent should be invalidated. And the new law gives the director of the patent office the power to order that a patent be re-examined.
“The patent office now has the opportunity to actually take the lead rather than following the courts,” said Arti K. Rai, a professor at Duke University School of Law and a former external affairs administrator at the patent office. “This has the potential to be a really important way to try to curb the problems with existing patents.”
A major problem, according to patent specialists, is that the patent office grants patents too easily in the first place. That is particularly the case, they say, with certain kinds of patents, including those on software. Unlike pharmaceuticals, where a single clearly defined molecule can be the patented invention, software patents often describe digital concepts carried out in code. In software, the boundaries are less clear, and innovation tends to be step-by-step, building on years, sometimes decades of work.
Big technology companies, patent specialists say, have exploited the complexity and uncertainty of software to amass large portfolios of patents.
Frontline patent examiners, working under tight time pressure, they say, tend to be outmatched by wealthy companies when patents are filed. But post-grant review affords another, more painstaking look. “It gives the patent office the ability to focus on the patents that really matter,” said Colleen Chien, an assistant professor at the Santa Clara University Law School.
The patent office’s re-examination team issued its invalidation decision on patent 7,469,381. It was one of the six patents that formed the basis of the jury verdict against Samsung in a federal court in San Jose, California.
The patent is at the center of Apple s intellectual property strategy in smartphones and tablets of patenting user-experience software. Upon review, the patent office determined that the idea and the bounce feature had been invented earlier, even if the pointing device was not a finger on a touch screen.
Before the California trial, Samsung had made a change to sidestep the Apple patent on its newest smartphones. The same finger stroke brings a blue glow at the bottom of the screen, not a bounce.
This week, Samsung filed a copy of the patent office’s initial invalidation ruling on the Apple patent with the judge in the California case, Judge Lucy Koh. Samsung has asked that Judge Koh overrule the jury. And the company is appealing the entire verdict.
The Android camp has filed other requests to re-examine Apple smartphone patents with the patent office.
In a statement, Allen Lo, Google’s deputy general counsel, said: “The patent office plays a critical role in ensuring that overly broad patents cannot be used to limit consumer choice. We appreciate the care the patent office has taken in re-examining dubious software claims."
Apple did not respond to an email request for comment.

Rico says don't count Apple out just yet; they pay for very good lawyers...