Patents shouldn't apply to the obvious

Patents shouldn't apply to the obvious

Summary: Will the next-generation of non-iOS phones have us licking the device to scroll and tapping it on our foreheads to zoom?

TOPICS: Patents, Legal, Mobile OS

Over dinner this week, my friends and I were discussing the Apple-Samsung patent lawsuit when I joked that the next-generation of non-iOS phones would have us licking the device to scroll and tapping it on our foreheads to zoom.

Lest you haven't heard, in one of the most hotly watched patent trials, the U.S. court on Aug. 25 ruled in Apple's favor and agreed Samsung had infringed several of Cupertino's patents including double-tap to zoom and one-finger to scroll.

Samsung, not surprisingly, is appealing the court's decision but should this be dismissed, these basic gestures--which have become almost a reflex for many of us--may no longer be available on non-Apple devices.

Reactions from the general public and industry analysts have been mixed. Some believe the South Korean electronics giant will be able to move on without much impact and modify its software to work around the patented features.

Consumers in Asia expressed concerns it could stifle Samsung's ability to innovate and pave the way for Apple to emerge a monopoly in the market.

More importantly, I think the lawsuit highlights yet again a pressing need for changes to be made to the tech patent system.

Patents were designed to protect intellectual property and encourage innovation. But when there are U.S. patents even for how peanut butter and jelly sandwiches are constructed, questions need to be raised over whether common things and methods should be patentable.

U.S. Patent No. 6,004,596, for instance, was awarded to U.S.-based The J.M. Smucker Company under its product brand "Uncrustables", and outlined how sealed, crustless peanut butter and jelly sandwiches were made. It triggered a public outcry because it appeared that an obvious and common invention had been patented. A reexamination was called and a U.S. court eventually rejected the patent in 2005.

I'm not calling for patents to be abolished. On the contrary, I agree they are necessary to ensure the IT industry continues to innovate and those that do so well should be rewarded accordingly. But patents should protect inventions that are truly novel, unique and intricate, and not serve to restrict varying applications of basic, fundamental features.

As ZDNet US blogger James Kendrick said: "The patent situation has sunk to such a low point because it is no longer serving the function it needs to serve. It has changed over time to allow minor changes and improvements in existing technology to become protected by patents... It's now largely serving to recognize minor improvements in existing technology. What is the natural evolution of technology, and what everyone should want to occur, is now being patented.

"This business of granting patents for things like how the user touches a screen, or slightly different ways of interacting with existing technology is just insane."

One of our readers highlighted a good point. In a post on the ZDNet Facebook page, "Royford Robinson" noted the need for a level of familiarity between products. "Just as if you buy a car, you don't want to relearn how to drive again if you're in a different brand of car," he said, describing the Samsung-Apple lawsuit as a "stupid court battle".

Imagine the mayhem if the steering wheel in a Honda makes the car turn left when the driver steers left, but does the exact opposite in a Ford.

Patents should be applied to protect true innovation and intellectual property, instead of some company's maneuver to shackle the competition.

Until then, Samsung can find some comfort today after a Tokyo district judge ruled its Galaxy smartphones and the Galaxy Tab did not violate Apple's patent on media transfer.

Topics: Patents, Legal, Mobile OS


Eileen Yu began covering the IT industry when Asynchronous Transfer Mode was still hip and e-commerce was the new buzzword. Currently based in Singapore, she has over 16 years of industry experience with various publications including ZDNet, IDG, and Singapore Press Holdings.

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  • Apple, stop it

    Apple seems to be the only one (thats i've seen) that keeps getting approved for patents that are so common.

    You see Microsoft getting approved for patents that are based on body movement (kinect).
    Google getting patents about search and how it's applied to a mobile phone etc.
    All those patents are relate-able, but here you have Apple getting patents for one-finger scrolling in a dam menu.

    Who/whom ever keeps sucking up to Apple in the Patent Office needs to get a nice slap in the back of the head and sent packing because really...

    Apple products are good and they have their use, but how their playing this rig'd game is straight out wrong.
    • Sometimes...

      things are only obvious in hindsight.

      Did anyone have double tap to zoom and one finger scroll on their devices before Apple? They may have have, however, if they didn't then Apple has every right to patent those gestures. They may be obvious now because you have been using them, but obviously not before or other companies would have been using them prior to iPhone. Remember what phones were like prior to iPhone?
      A Grain of Salt
      • " Remember what phones were like prior to iPhone?"

        Yes I do. Phones are only just starting to recover from the set back this last year.
      • That's Not How Patents Are Supposed to Work

        These features that you mention should never have been patentable by anybody, even when they were first thought of. It's this idiotic notion that being the first to think of doing something gives you the right to patent doing it that is at the crux of a lot of the problems with patents right now.

        Patents are supposed to be about technology, not control schemes. the problem with a patent on "double tap to zoom" or "one finger scroll" is that you are trying to patent 'taking an action and getting a result.' That's not the way patents are supposed to work. Given the goal of "make it zoom when I double tap" anyone in the industry could have easily created the hardware/software combination that makes it work. The technology involved is obvious. It's only the technological part that is supposed to be patentable, not the action/result combination. It doesn't matter how novel the control scheme is, it is not supposed to be protectable by patents, and there is good reason that it ought not to be.

        If you make an action/result combination patentable, then you pave the way for an infinite amount of trivial patents by people who have no particular expertise in any kind of technology. You don't have to know anything about how touch screens work or how to program an interface to think, "It would be nice if it zoomed when I double tapped." Thinking of the control scheme is just a natural result of touch screens existing.

        Patents are not supposed to be about being the first to think of doing something that is easy to do. They are supposed to be about being the first to figure out how to do something that is difficult.

        It doesn't matter whether the control scheme is obvious or not. It only matters if how to make it work is obvious. The technology to make these things work already existed. Patenting the actions themselves is just stupid.
        • That's what patents are...

          The idea that the first person to think of something (or more precisely, to reduce a thing to practice) is supposed to get a limited time MONOPOLY right to make, sell or use the thing they came up with. This is exactly what a patent is supposed to do. We have patents and the associated patent law here in the US today because our country's founders decided that granting limited time monopoly rights to inventors was a good trade-off that would drive innovation and prosperity. And so they wrote the requirement for and the general outline of limited monopoly rights in exchange for innovation into our constitution.

          Innovations like one-finger-scroll and double-tap-to-zoom are exactly the kinds of innovation our patent system is intended to encourage. Remember, that a lot ad very big, powerful companies had been in the phone business for many years before new entrant Apple defied convention and risked a whole lot of,time and treasure to not just think up these things and figure out how to implement them, but to bring them to the market in useable form. Potential patent rights to protect what the developed from those who would seek to copy their work was an important incentive motivating Apple to do what they did.

          Those who argue that anyone in the industry could have easily made an iPhone in 2007, tend to forget that nobody else did.
          • Not the First Person to Think of Doing Something

            You don't need any expertise to be the first person that thinks of doing something. If the implementation for what you think of doing is obvious to someone skilled in that area, then it is not patentable. It's not whether the thing you think of doing is obvious that counts; it's whether how to do it is obvious that counts.

            Putting together a lot of pre-existing technology into a new device is great. That's what manufacturers do. Being particularly good at doing that still does not make doing that patentable. I happen to draw fairly well. That doesn't mean that I can patent my drawing technique. Apple is good at designing devices from pre-existing parts. That doesn't make designing devices from pre-existing parts patentable.
          • Those Aren't Innovations

            It doesn't matter how good of a gesture you come up with. If it's easy for someone skilled with the technology to see how to make it work, then it's obvious. Granting a patent for a gesture because that gesture happens to turn out to be particularly appealing to users is like patenting psychology. You can be the best psychologist in the world, but you still can't patent psychology.

            Also, half the time a gesture is only the preferred one because it happened to be the one that was used on the first device that became popular. There could be another gesture that would have been just as workable, but is just not what people became used to.
      • Google Map before iPhone

        Remember computing before iPhone? You double click to zoon into the map.

        What Apple did is search and replace "click" to "tap" and added "on mobile device" on the same sentence and file the patent.

        Only people like you couldn't see "double click/tap to zoom" is not obvious, at all.
      • Remember what phones were like prior to iPhone?

        Same question can be asked of the iPhone. They got the idea for making a smartphone from existing smartphones. Yes they may have improved on the features, but it wouldn't have been obvious to them that you can get a phone to do more than just call and send texts. No one got a patent for that but it's pretty obvious someone came up with this novel idea
        Muyiwa Matuluko
  • Patenting the obvious

    As Apple and others are using tech patents nowadays, they do stifle innovation, but their real purpose is to stifle competition. Imagine if Apple had patented a design for a 'portable computer with integrated keyboard and hinged cover incorporating an LCD screen'? No one else in the world would be able to market anything resembling a laptop. The way things are going, these patent lawsuits will continue to stifle both innovation and choice, to the detriment of us all.
    • Patent Trade-off

      The whole idea of patents is to encourage people to innovate and come up with new, useful and non-obvious stuff. In exchange for inventing something new, a parent on that new thing confers to the patent holder a limited tome MONOPOLY right to make, use or sell the newly invented thing. (frequently an iThing, but I digress...)

      Apple clearly invented several useful, new things that they subsequently incorporated into the iPhone. That these things were non-obvious is readily apparent if one compares the smart phones that proceeded iPhone with the iPhone.

      This brings us to the fundamental patent trade-off. Apple did invent some nice, new stuff that people really like. The monopoly rights afforded Apple via patent for their inventions means that people who want Apple's newly invented, cool stuff should be obliged to pay whatever Apple asks, and they are asking quite a bit. And, lots of people would like access to Apple's invention much more cheaply than Apple is willing to sell it for.

      It really boils down to offering an inventor a financial incentive for inventing stuff, with the caveat that if people really like what the inventor does, they will take it away from him / her without compensation. This is hardly something that will motivate really good inventors.
      • Where's the Invention?

        Yes, Apple incorporated a nice combination of technologies into the iPhone. There's a capacitive touchscreen, an ARM based SoC, a lithium ion battery, etc. However, Apple didn't invent these things. Various gestures on a touchscreen are not inventions. Patenting them is equivalent to patenting the set of turns you make to get to one place from another while driving. You didn't invent the car, you didn't invent various pavements. You didn't invent the steering wheel. You just turned the steering wheel in particular directions in a particular order. Even if you are the first person ever to discover the route you take, and it turns out to be the fastest route to somewhere, you didn't "invent" anything and you don't deserve a patent.
        • Gesture Inventions

          Apple didn't invent gestures, and apple doesn't have a patent on gestures. What Apple did invent were methods for recognizing gestures and additional methods for associating various gestures with specific actions taken by the device.

          Any phone maker is free to use any gestures they want. What they are not free to use are the specific methods Apple invented for recognizing gestures and associating gestures with specific actions.

          It's time to get over the idea that Apple claims to have invented gestures. It's just not so.
          • That's Not the Claim

            Apple is claiming to have invented specific gestures. They certainly did not invent methods for recognizing gestures.. Associating gestures with a specific action is not an invention. It's silly to try to claim it as one.
  • Where Do You Draw The Line?

    Patents are wrong, and that’s all there is to it. They are an anticompetitive monopoly based on ownership of an idea. You can’t own an idea.
    • But you can come up with it first and there should be some benefit to you

      for doing so.

      Pagan jim
      James Quinn
      • Re: But you can come up with it first...

        The only thing you can come up with first that is of any use is the execution, not the idea. As Thomas Edison said, anything worth doing is 5% inspiration and 95% perspiration. Even if they copy your inspiration, that still only takes them 5% of the way to achieving what you’ve achieved.

        In economics, this is called the “first-mover advantage”.
        • Re: But you can come up with it first...

          the 95% perspiration is in building the first prototype, like Edison and the light bulb, he tried hundreds of combinations of materials before he found the right materials to make it last long enough to be worthwhile

          of course once youve done all the work, all someone else has to do is look at the materials you used and recreate your device without having to do any of the discovery work. thats what patents are for, not to compensate you for the work on the final model that works, but to compensate for all the work you put into the hundreds of designs that didnt work

          of course this is all moot as this isnt what apple did nor what apple has been awarded patents for, i think the system is broken but we shouldnt throw the baby out with the bathwater
          • Re: the 95% perspiration is in building the first prototype ...

            No it isn’t. It is in bringing the product to market. How much of its revenue do you think a company like Apple spends on R&D? It’s only about 2%. Lots of other companies actually spend more than that.

            And here’s another fun fact: Edison is credited with inventing the light-bulb, yet who got the patent on the light-bulb?

            Do you see how “patents” ≠ “innovation”, yet?
          • Thats my point

            Apple doesnt do R&D, they look at what other companies do, then file for patents and sue everyone else. they dont innovate, they look at where everyone else is, take one more step forward and claim ownership of the entire journey

            edison was granted a patent for his light bulb in 1880, although at the time he already owned patents (some his own, some he bought) for several other electric lights.