Can Apple really sue Google or Microsoft for using its patented sliding on/off switch?

Yes, but Apple probably won't. Here's why.

A violation of Apple's slide to open patent!?

A violation of Apple's slide to open patent!?

In last week's episode of “Can you top this dumb patent?” we discovered that Apple had patented the design element of sliding to unlock a device. Gosh, and I recall my grandpa's front gate having a slide-to-unlock device in the 60s! Boy those Apple guys had to get up early in the morning to invent that one

Sarcasm aside, does” every Android device now infringe this Apple patent?” Or, for that matter, every Windows 8 device? Well, yes, they probably do. But does that mean that Apple is really going to be using this patent to sue everyone and anyone who uses the slide metaphor in their design? I asked some prominent intellectual property (IP) lawyers about it and this is what they said.

Thomas Carey, a partner at Sunstein, a major intellectual property (IP) law firm and chair of its Business Department, said that, “In this particular case, it appears that there is prior art that may render the patent invalid.” Carey points out that this video of the Neonode N1m device at the 4 minute mark appears to pre-date Apple's devices.

“However,” Carey continued, “The Apple patent claims refer to a touch screen, which is not what the device in the video contains. Nonetheless, applying the same technique to a touch screen would seem obvious. Hence, invalidity.  (The priority date on the patent is 12/23/2005, which comes after the date of the Neonode N1m.)”

If Apple were to sue someone with this patent, Carey suspects Microsoft, rather than Google and its Android partners, might be targeted. After all, “Apple has had its innovations ripped off by Microsoft for years, so you would surely expect them to start seeking patent protection for their innovations.”

Even so, Daniel Ravicher, an attorney and executive director of the Public Patent Foundation, doesn't see Apple suing anyone with this particular patent. “Getting a silly patent takes a few thousand dollars and can stealthily contribute to quantity metrics. Deciding to assert a silly patent in litigation takes a few million dollars and can't hide from quality requirements. I doubt they'd ever assert this patent.”

So, the consensus seems to be that this particular patent won't be seen used in anger inside a courtroom any time soon. Other dumb patents, that's another matter. With patents likes these, the mobile patent wars look certain to go on for years—decades—more. Now, just so long as no lawyer comes to my grandpa's old door I guess I can put up with it.

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