From October 2016 to March 2017 the team is joined by Guest Kats Rosie Burbidge and Eibhlin Vardy, and by InternKats Verónica Rodríguez Arguijo, Tian Lu and Hayleigh Bosher.

Sunday, 6 September 2015

Apple’s European slide-to-unlock patent declared invalid in Germany

Ginger treats all slides
with the utmost gravity
This Kat is still in possession of, among other things, an old non-smart phone which he has to unlock by pressing a combination of keys -- or rather, by first trying to remember which combination of keys he has to press and then performing that operation. This leads him to remark on how quickly something that starts life as an exciting innovation is soon relegated to the depths of routine, carried out at a subconscious level at which no thought is required.  Such is the fate of the slide-to-unlock technique which was the subject of a much-litigated patent.  Occasional guest contributor Thomas Dubuisson takes up the tale:
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).

Figure 1
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.

Figure 2
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. 
Figure 3
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. [2013] 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. [2012] 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. 
It 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. 
Interesting locks here, here and here


MaxDrei said...

I see that there was no opposition at the EPO but Applicant has filed two divisionals and that an exam report issued last month in each of them. I wonder what their fate will be. Base date 2006. Still plenty of the term left to play out.

I see that "Neonode" is Swedish. The Ericsson company perhaps?

Old Man said...

It is correct that there was no opposition. Looking at the file, it can be seen that Apple attacked Nokia and a Munich firm of patent attorneys filed an intervention under Art 105 rather than a clear cut opposition. It was a "precautionary" filing as it was not known whether an opposition had been filed or not. As no opposition was filed, the intervention was not admissible.
As the patent had been granted on 10.03.2010 when the intervention was filed, the opposition period was still running. Why on earth then file an intervention and not an opposition? Nokia's representative was not really professional to say the least...
No sign of Neonode phone in this rather strange intervention.
The Neonode prior art must have come in later.

maxdrei said...

Why no opposition? Perhaps to keep the way clear, to petition the BPatG to revoke the patent asap? How about that?

Anonymous said...

Remember the Hilti case from about 15 years ago? Litigated all over Europe and found valid and infringed in CH, the home of the patent owner. But in every other EPC where it was litigated the court found the asserted claims bad or not infringed, or both.

Anonymous said...

Old Man, I would not be too quick to condemn. The preference for a party who is the subject of an infringement action in Germany is to file a revocation action at the Federal Patent Court but this is not admissible if there is a pending opposition. By filing an intervention rather than its own opposition, Nokia would have been protecting themselves against a submarine opposition having been filed but not mentioned on the register, allowing them to be a party in such a situation.


Anonymous said...

Why no opposition? For very good reasons - the EPO do tend to be inconsistent when hearing or dismissing public prior use evidence. They seem to steer clear of hearing witnesses at every possible opportunity for the most ludicrous reasons, such as "You've not proved that the public prior use happened so we see no reason to hear a witness" (What! If its not been proved in writing, then hearing a witness should occur to help the EPO to resolve the issue, surely).

Rather than risk an adverse (possibly crazy) decision from the EPO, maybe it was a good tactic to go straight to the courts where a more sensible procedure should prevail and a more rigorous process would lead to the "right" decision.

MaxDrei said...

As to examination of prior use, at the civil law, who wants to take the responsibility for hearing witnesses when one simply has no expertise in fact-finding by cross-examination?

I had always assumed that the point of running a respectable prior user attack at the EPO was to convince the Panel that it would be unconscionable to let the patent stand. Once so convinced, it will then find some other way to do the patent down, some way that is familiar to it, some way where finding the wording for the reasoned Decision is something it can comfortably contemplate. Conversely, if you never even show the Panel the prior use, any other validity attacks you run are less likely to succeed.

If you need witness evidence to see off the patent, better bring your invalidity suit in England, no?

Old Man said...

There are still some truly anonymous writers in this blog. I thought this would not be acceptable?
To EdT
Thanks for the comment. It seems a valid reason. But it is still strange to fight against a possible submarine opposition when there is still plenty of time for opposing left.
To the Anon of today 13:48:
When hearing witnesses one should keep in mind that a witness can only confirm what has been stated in the opposition statement and cannot bring in new information, e.g. T 241/99 or T 1156/05. It thus depends on how the public prior use is presented in the opposition statement.
Bringing in witnesses is often done badly by the opponent. Either it is a technical member of staff and only knows by hearsay to whom it has been sold. Or it is a salesman who can well say to whom an item has been sold, but then does not have the faintest idea of what the item consisted of. Do you really expect the division to get in such fruitless discussions?
If an OD revokes a patent on the basis of a public prior use and witnesses have been offered but not heard, then the OD commits a substantial procedural violation, e.g. T 1100/07. It has even happened that a Board remitted for a witness to be heard before the OD, T 992/01.
In any case sweeping and derogatory statements like yours do not help. I would rather say that it is for the representative to do his homework when filing an opposition.
To Max Drei
There is no cross examination of witnesses in the Anglo-Saxon style at the EPO, for the reasons given above, confirmation not discovery.

Oliver Löffel said...

These are the reasons for the judgment in German language:

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