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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).
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| 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.
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| 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.
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| 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
