|Ginger treats all slides|
with the utmost gravity
On 25 August 2015, the Bundesgerichtshof (Federal Court of Justice, Germany’s highest court), affirmed the Federal Patent Court’s April 2013 decision to declare the German part of Apple’s European patent invalid. The action opposing the grant of the patent was brought by Motorola Mobility. The United States now remains the only place where the patent is still valid.Steve Jobs launched the first iPhone at a blockbuster keynote in San Francisco back in 2007. After presenting this “revolutionary product that comes along and changes everything”, he then explained how to unlock the iPhone:
“… to unlock the phone I just take my finger and slide it across. Want to see that again? Sleep. We wanted something you couldn’t do by accident in your pocket. Just slide it across. Boom. And this is the home screen of iPhone right here” (iPhone Keynote 2007, 0:41:47).
Following the “boom”, a number of patent battles were fought around the world with Android device makers. One of the battles concerned a patent (see figures 1 to 3) granted to Apple for “Unlocking a device by performing gestures on an unlock image” (European Patent No. EP1964022), a.k.a. the slide-to-unlock image patent. As set out in the description of the patent, the idea behind it was to solve one of the problems associated with using touch screens on portable devices, namely the unintentional activation or deactivation of functions due to unintentional contact with the touch screen. There was a need for more efficient, user-friendly procedures for unlocking such devices, touch screens, and/or applications.
In essence, the patent proposed that, to unlock a device such as a smartphone, the user carry out a certain finger movement (swipe) on the contact surface (screen) along a predetermined path (aided by graphical assistance). The Bundesgerichtshof held that the subject matter of the patent was not patentable under Article 52(1) of the European Patent Convention (EPC), because it did not involve an inventive step (Article 56, first sentence, EPC). An invention is considered to involve an inventive step if, having regard to the state of the art, it is not obvious to a person skilled in the art. In other words, who is more creative than Apple, one of the world's most creative companies? It appears that a Swedish Company, Neonode, had already been using a swipe-to-unlock gesture system before the iPhone was launched. More precisely, the prior art was embodied in a mobile phone known as the Neonode N1: this contained a graphical representation requiring a swiping movement on a touch-screen to initiate the unblocking process. Accordingly the patent was not based on an inventive step.
So far in Europe, all the judges who have had to rule on the European slide-to-unlock patent have concluded that Apple did not deserve patent protection for this invention. For instance, in August 2011, the District Court of The Hague (Joined Cases 396957 / KG ZA 11-730 and 396959 / KG ZA 11-731) found that this feature, if not completely trivial, was at least obvious in light of the prior art as embodied by the Neonode N1. In May 2013, the Court of Appeal for England and Wales in HTC Europe Co Ltd v Apple Inc.  EWCA Civ 451 [on which see Norman Sierbrasse's guest Katpost here] unanimously affirmed Mr Justice Floyd's decision (in HTC Europe Co Ltd v Apple Inc.  EWHC1789) with respect to the slide-to-unlock patent and held that “all the claims of 022 [Apple’s slide to unlock patent] are obvious in the light of Neonode” (paragraph 363). As stated, on April 4, 2013, the Federal Patent Court of Germany declared all parts of the European slide-to-unlock patent invalid.
Interesting locks here, here and hereIt is only in the U.S. -- in California, Apple’s home state – that Apple has been able to score wins when it comes to the slide-to-unlock patent. In any case, the scope of the patent is quite limited (it only covers the slide-to-unlock where an image is moved across the screen) and can be worked around (it has been implemented into a multitude of Android devices). It’s hard to ignore the suggestion that Apple made this feature “famous” and most likely forced other smartphone makers to implement distinguishable slide-to-unlock mechanisms. Now people know instinctively what to do to unlock a phone but, at the end of the day, in this case it was not considered that their innovative capabilities were a sufficient reason to limit consumer choice.