The iPhone’s multitouch patents are the equivalent of a cold war nuclear arsenal—dormant for now, but Palm’s Pre is looking for a fight. Here’s why we think Apple’s multitouch monopoly won’t last.
To help guide us through, machete in hand, what is one of the more confusing jungles of U.S. law, we talked to R. Polk Wagner, a professor of patents law at the University of Pennsylvania Law School. He specializes in patents and intellectual property as it relates to technology, and teaches hundreds of Penn Law students every year how to decipher the Enigma-level encrypted language of patent filings. We couldn’t have done it without him.
As others have thoroughly and eloquently explained this week, it’s impossible to identify a single patent that has a lock on the iPhone’s multitouch magic as we know it. That patent probably does not exist. But here’s the key—patent wars are intrinsically cold wars. They entail both sides jacking up their arsenals (reams of legalese replacing megaton warheads) with as many patents as possible, with hopes of scaring their adversaries out of even attempting to try something. These cold wars, thankfully, rarely turn hot, but under our legal system, lack of courtroom action means there’s almost no way to determine whose armada of patents actually cover what.
The meat of every patent is a list of claims, and it is the claims and only the claims that spell out exactly what can get you sued and what can’t. Unfortunately for us, but very fortunately for the thousands of patent lawyers hoping to feed their families, claims are written in a language not comprehensible to normal humans. The goal is to be both incredibly vague and legally specific at the same time
“Patent claims are an attempt to use words to describe things and ideas, an imperfect way of operating. In an ideal world we’d have patent claims that look like a title record you get for your house [your property starts exactly 200 feet from this road walking in exactly this direction, etc]. But it is incredibly difficult to predict exactly what a patent will or won’t cover,” Prof. Wagner says.
But the old patent-law adage Prof. Wagner likes to use in class is true—”the claims are the name of the game”—and it is their vagueness in this instance that would make it easy for Palm, if their lawyers and engineers know how to talk to each other, to design itself out of a hole and bring true multitouch to the Pre.
The patent we’re referring to is #7,479,949, awarded on January 20 of this year. It has a list of 20 claims but as Prof. Wagner showed us, out of the 20, 17 are “dependent,” which means they drill down more specifically into features of the invention/interface/device described in their parent claim. In our quick Patent Law 101 with Professor Wagner, we learned that to legally infringe upon a patent, you need to violate an entire independent claim, which means, if you rip off one of its dependents, you’re OK, you just can’t rip off all of them all together.
As Engadget’s legal eagle, Nilay Patel, sagely identified in his piece, considerable chunks of this patent deal with not multitouch as a whole, but one very specific use case: the iPhone’s ability to lock itself into a one-dimensional scroll (vertical or horizontal) on, say, a webpage. It’s based upon the first movement of your finger: move it straight up and down, and you’ll only be able to scroll vertically. But just as it’s hard enough to divine exactly what’s going on in patents to begin with, Professor Wagner—a man with considerably more experience than I do at doing doing exactly that—says it’s tough to assume that an entire patent can be distilled down to a single behavior. Here’s the legalese for the scrolling behavior in claim #1, which is an independent claim with 9 sub-claims:
…A vertical screen scrolling heuristic for determining that the one or more finger contacts correspond to a one-dimensional vertical screen scrolling command rather than a two-dimensional screen translation command based on an angle of initial movement of a finger contact with respect to the touch screen display
But there’s more to it. Claim # 1 is a pretty beefy paragraph, with three more important specific behaviors listed within, each of which must be ripped off to infringe on that claim. The first one sounds like the ability to know the difference between a one-dimensional scroll and a two-dimensional scroll, which unlocks both vertical and horizontal scrolling:
…A two-dimensional screen translation heuristic for determining that the one or more finger contacts correspond to the two-dimensional screen translation command rather than the one-dimensional vertical screen scrolling command based on the angle of initial movement of the finger contact with respect to the touch screen display
And the third and most interesting one, which tacks on the seemingly unrelated behavior of side-scrolling through a list of things, like Cover Flow albums:
…And a next item heuristic for determining that the one or more finger contacts correspond to a command to transition from displaying a respective item in a set of items to displaying a next item in the set of items.
What’s interesting is that the only other phones on the market technically capable of multitouch—RIM’s BlackBerry Storm and T-Mobile’s Google Android G1—have web browsers that scroll in exactly the same manner described in the patent. But, if they don’t also feature a Cover Flow-like interface for side scrolling (the G1’s photo gallery uses next/prev buttons, for instance), they’re legally safe from infringing on this particular claim. Even more interesting is that the Storm’s photo gallery app does indeed use a Coverflow-like swipe to navigate through photos, so from where we’re sitting, they could be in trouble. But as you can see, it gets that specific.
So, patent mumbo-jumbo aside, here are the keys:
1. What Apple can and most certainly is doing is patenting all of the special ways it makes multitouch magical—like the Cover Flow scrolling lists, or using two fingers to rotate an image by pivoting one around the other (which doesn’t appear to be singled out in the patent in question here). Still, it’s hard to assume that Apple has a patent lock on the concept of multitouch as a whole—multitouch has been around in theory for too long and it’s probably too general of an idea for Apple to claim an absolute lock. Exhibit A here is Microsoft’s Surface table, which is currently on sale and has plenty of iPhone-like multitouch zoom and scrolling features built right in. But Apple may just be steering clear of Microsoft, the one behemoth that can match Apple’s legal might.
2. Regardless of legal defensibility, Apple’s multitouch cold war is working against everyone but Microsoft. Google didn’t even tempt the Cupertino warheads (I mean lawyers) with multitouch on Android, and HP gets visibly nervous even when we simply ask whether their TouchSmart PCs will support multitouch some day. Keep in mind, though, that unofficial multitouch applications exist for both Android and HP’s TouchSmarts.
As Prof. Wagner points out, Apple is great at protecting their innovations. Look at the click wheel—it’s without a doubt the most elegant way to navigate an MP3 player’s interface, and no one has been able to mimic it exactly. Others have clickable buttons, and touch-sensitive controllers, some of which are shaped like wheels, but Apple has been able to protect the specifics of the clickwheel—all of these elements combined—that make it special.
—crazed enough by desperation to be the first to just go for it. Also, they’ve been making phone software far longer than Apple, and insinuate that they have some patent warheads of their own to train on Cupertino.
4. The truth of the matter remains, that Individual patents (and, even more so, individual claims inside of individual patents) are easy to design around if you’re careful (and have good patent lawyers working with your engineers), since all it takes is one deviation from one of a patent’s claims specifics to put you in the clear. But this recent filing, clearly, is not Apple’s only multitouch-related patent. Many more exist, and many more are surely pending. That’s where Palm’s patent lawyers come in. As long as Palm (or anyone else) can walk the tightrope with Petit-worthy grace, implementing multitouch features without infringing on the exact specifics of any one Apple patent claim, they’ll be OK.
But beyond that, Palm may actually use the chance to take multitouch to places we’ve never seen before. “Designing around patents requires innovation,” said Prof. Wagner, “and a lot of times, the end result turns out better than the what was being imitated.” All of this, of course, is completely up in the air for Palm. We were reminded many times that what we saw at CES was far from a production model, and a lot could change about the specifics of the Pre’s multitouch when the finished product makes itself known.
From the looks of things, Apple is the Gipper, the Ronald Reagan of tech. When they don’t fight, they often find a way to win (or look like they have won). And when they do fight, it takes an equally massive superpower to give them any competition.
We’re rooting for Palm though, and Google and RIM too. More multitouch cellphones = more competition = happier consumers. Détente, people, détente!
If you’ve got any interest in Microsoft’s 
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