Tuesday, January 27, 2009 - The Progress & Freedom Foundation Blog

Apple's Patent on Touch-based Gestures

On January 20, 2009, the U.S. Patent & Trademark Office issued Patent No. 7,479,949 to Apple, entitled "Touch screen device, method, and graphical user interface for determining commands by applying heuristics."  Steve Jobs is one of the co-inventors.

Although the patent itself is complex (it includes more diagrams than I've ever seen in a patent, and has a maze of related patent applications), the claims purport to cover a broad swath of tools available in a touch-screen user interface.

A quick look shows that the patent claims all deal with, essentially so-called "heuristics," which the patent defines as techniques "to translate imprecise finger gestures into actions desired by the user."

The broadest patent claims cover touch-based systems that have at least three particular heuristics built-in.  They are all essentially flicks:
(i)  a "vertical screen scrolling heuristic" that scrolls the screen vertically (ignoring any accidental sideways movement of the touch);
(ii) a "two-dimensional screen translation heuristic" that drags the screen around, taking into account both horizontal and vertical motion of the touch; and
(iii) a "next item heuristic" to recognize that the touch should result in the display of the next item among a set of items.
(See patent claim 11; see also patent claims 1, 9, 17.)

Narrower patent claims clarify that the choice whether to scroll vertically or in two dimensions is for web browsers, and the "next item" heuristic is for photo albums.  (See patent claim 12.)

It's always a dangerous game to interpret patents without reviewing the back-and-forth dialogue between Apple and the PTO, which resulted in the issuance of the patent.  And it may be especially dangerous here, where Apple purports to incorporate by reference some 17 other related patent applications and patents into this one.

This patent really highlights the complexity of the US patent system.  Although the patent claims themselves seem straightforward, a diligent review of the patent would necessitate reviewing not only this patent's file history, but the 17 related patent applications and patents.

Moreover, it's tricky to figure out what the relevant date is for art to invalidate the patent.  We know that the earliest date of priority in the patent is September 6, 2006.  So any printed publication or public use/sale more than a year before that is potentially invalidating (35 U.S.C. s 102(b)).

But there are other ways to invalidate the patent, which can't be discerned from a patent's face.  When did Apple invent this system of heuristics?  Was it after September 5, 2005?  Art that precedes Apple's invention of the patent (35 U.S.C. s 102(a)) can invalidate the patent.  The dates for invention are never disclosed in a patent, and only come out through litigation.  Thus, while there is a chance that post September 5, 2005 art can invalidate one or more claims, there's no way to know.

It is striking how protection for user interfaces has changed over the years.  It is not clear that patent protection for user interfaces is a step in the right direction, even for iconic breakthroughs in interfaces such as for the iPhone and iPod Touch.  The 300 diagrams in this Apple patent call to mind the 189 graphical user-interface elements of the Apple v. Microsoft copyright infringement case from the early 1990s.  The Apple v. Microsoft case prevented Apple from obtaining the protection on the overall look-and-feel of its software, and instead treated as discrete each element of the user interface.  This patent, and others like it, purport to cover the combination of several elements -- here the web scrolling with the photo-album browsing -- and not the discrete elements themselves.  With the Apple v. Microsoft case largely having thrown copyright out the window, and with trade dress protection excluding functional elements, patents are really the only option for companies like Apple, until and unless another solution is found.

posted by Sidney Rosenzweig @ 11:34 AM | IP