The team is joined by Guest Kats Rosie Burbidge, Stephen Jones, Mathilde Parvis, and Eibhlin Vardy, and by InternKats Verónica Rodríguez Arguijo, Hayleigh Bosher, Tian Lu and Cecilia Sbrolli.

Thursday, 5 July 2012

HTC slides free of Apple's multi-touched embrace

Old habits must indeed be hard to break. Guest Kat Darren Smyth retired from this blog mere days ago but already the IPKat is indebted to him for pointing out a fairly mammoth decision of Mr Justice Floyd in the Patents Court.

The case is HTC Europe Co Ltd v Apple Inc [2012] EWHC 1789 (Pat). It runs to a whopping 375 paragraphs and fully considers the infringement and validity of four unrelated patents (unrelated, that is, apart from the fact that HTC smartphones were alleged to incorporate the technology of each of the patents), so the IPKat will confine himself to an outline of the issues and the outcome on each patent.

1st Patent: Multi-touch 
EP 2 098 948 is concerned with the multi-touch abilities of devices such as smartphones. Multi-touch abilities are probably most familiar as the ability to "pinch" and "de-pinch" a screen image to zoom out and in. Sometimes this is a desired ability, but not always. For example a smartphone might be running an application where simple inputs only are needed and multiple simultaneous touches are invalid inputs. In other instances, there might be different elements on different parts of the screen and touching those different elements might cause a conflict (pressing the "play" and "delete" buttons simultaneously for a song, for example).

The patent described two solutions in the form of flags that could be set on or off for any given application or any screen element of an application. Using these flags, software designers could designate how the application would respond (if at all) to multiple detected touch events. In some cases, the detection of a second touch would be explicitly recognised or ignored; in other cases, a second detected touch event would only be recognised if it occurred in the right part of the screen.

Floyd J held that this patent was not infringed because HTC did not set flags in the same way in their operating system. He also held that the claims were invalid for excluded subject-matter (the "computer program as such" prohibition), and that claim 1, but not claim 2, was obvious. Of some interest is the fact that the obviousness finding for claim 1 was made over common general knowledge alone.

The "Arc mechanism": pull the curved bar
to the bottom of the screen to unlock

2nd Patent: Slide to unlock
The text of the decision, at least as it appears on Bailii, refers to this Patent as EP 2 964 022; in fact it should be EP 1 964 022.

It's unusual that one can read a decision while studying a sample of the alleged infringement, without having been involved in the case. But if your smartphone has a "slide to unlock" feature of some sort, you will be right up to speed with this patent. Examples include Apple's own slide-to-unlock bar (the subject of the patent) and the HTC "Arc unlock" feature (shown right), as well as their so-called "Ring unlock" mechanism and a third lock screen mechanism called the "Icon mechanism".

The Apple patent is exemplified by the iPhone's "slide to unlock" mechanism, where the user drags a slider button from left to right along a channel. While no channel was required by claim 1 and nor was any particular direction of motion needed, it was necessary for there to be visual feedback, and for the unlock element to move along a "path".

On infringement, Floyd J held that the Ring and Icon mechanisms lacked the necessary "path" as the screen did not show the user where to move the relevant unlocking element with a swipe gesture. However the Arc mechanism had a pair of animated arrows, just visible below the curved bar (photo, right), which were enough to indicate a path. There was therefore infringement.

However, the infringed claims were held to lack novelty, and to lack inventive step, although they were not invalid for excluded subject-matter.

3rd Patent: Photo Gallery
Fig. 23D of the '868 patent
EP 2 059 868 covers the operation of the user interface for a photo gallery. The granted claims were based on a relatively short section of a long document, leaving Apple without a great deal of support for a broad interpretation of claim.

As Floyd J construed the claims (and here, the IPKat paraphrases to cut a long story short, no doubt losing in clarity what he gains in brevity: the full explanation and construction is at paragraphs 246 to 266 of the judgment), they covered a scenario where a user has zoomed in on an image and then swipes the zoomed image left or right. As the edge of the image is reached, it starts to travel across the screen and then bounces back. The figure (left) from the patent shows the zoomed-in image after it has been swiped to the left, and the previously unrevealed edge has been revealed, has travelled a little way across the screen, revealing the underlying black background, and is just about to bounce back. After this interaction, further swiping to the left will draw the next gallery image onto the screen. In other words the bounce back only occurs in the zoomed state, and then only on the first swipe.

Cutting a long story even shorter, Apple had hoped for a broader construction than this, and HTC's Gallery application did not work in this way, so there was no infringement. The claims were held to be valid, giving Apple a hollow victory on that point.

4th Patent: SMS Language Switching
Floyd J. cautions that this patent, EP 1 168 859, is positively elderly, dating from 1994. It was a time when phones were cruder, heavier and distinctly less feature-rich. Younger readers may scoff in disbelief, but the phones had no apps, no music players and no touchscreens. The "user experience" tended to involve blocky black pixellated letters on a green screen.

It can be difficult to don the spectacles of a 1994-era mobile phone designer (image from
The patent describes and claims a method of allowing a user to send messages (i.e. SMS text messages) in a number of languages, by virtue of different memory sections storing the required alphabets and control means to select a particular language or alphabet.

HTC's devices would have infringed the claims if they were valid, but they were not, said Floyd J. In particular, there was an item of prior art describing a proposal to update SMS standards to enable use of the Arabic alphabet, and given the state of the art in 1994 when SMS messages were already well known, the application of this proposal to existing phones would have rendered the invention obvious.

Time estimates
The other notable feature of this judgment is the criticism by Floyd J of the case management and the time estimates given to the Court. Floyd J notes that the parties at one stage indicated that it would take 6-8 days which appears to have been a woeful underestimate given that the hearing extended to 14 days eventually. The judge commented that it should have been clear given the number of patents involved, the number of reports, the number of witnesses and the nature of the case, that 6-8 days was "a seriously inaccurate estimate on any basis".

He also commented that while a pre-trial review is only strictly required in cases lasting ten days or more, this was a case that (a) was always going to last ten days, and (b) by its nature warranted a pre-trial review in any event.


Anonymous said...

As long Apple wins in the US, that all that counts. It's well known that the English don't enforce patents. Maybe that's why all the successful Brits move to the US- where IP counts and has value. Let people tramp on others IP; and guess what, no VC ; no innovation; socialist economy.

Anonymous said...

Spot the troll!

Anonymous said...

"... the US - where IP counts and has value..."

Oh, the irony.

See for example:

"Pfizer sued by retailers for generic Lipitor delay..."

and also:

"To his many detractors, (...) Lemelson's patents were in fact worthless. Lemelson, they say, was one of the great frauds of the 20th century".


Subscribe to the IPKat's posts by email here

Just pop your email address into the box and click 'Subscribe':