One of the ways a patent can be questioned outside of court is by filing an "ex parte" reexamination request at the US Patent and Trademark Office. That's what an anonymous third-party did to Apple's patent No. 7,479,949, which lists Steve Jobs as its lead inventor and covers different kinds of scrolling within a document.
Last December, that patent received an initial rejection from the Patent Office. But now the reexamination has concluded, and the patent has survived intact.
In a document explaining his decision, the examiner decided that the prior art (an earlier patent) cited in the request includes "a translation command [that] does not include the determination of such a command based on an angle of initial movement of the finger contact with respect to the touch screen display."
The older patent (called the Wakai patent) can't distinguish "between [a] one-dimensional vertical screen scrolling command and a two-dimensional screen translation command based on an initial angle of movement," wrote the examiner.
The document is written in very specific technical language. However, even for those not versed in the details of early smartphone touchscreens, it's an example of how patents can be granted on relatively tiny changes to prior technology.
Patent office records show the reexamination was concluded in Apple's favor on September 4. The news was first reported yesterday on Florian Mueller's blog, FOSS Patents.
FOSS Patents discusses the affirmation of the "Steve Jobs patent" in breathless tones, saying the confirmation of the patent is "a potential threat" to other Android device makers, a "massive setback [for] Samsung and Google," and a "major strategic win" for Apple. It's "inevitable" that Apple will soon be receiving royalties from Android makers, he states.
Mueller's "the end is nigh" analysis was re-reported, with similar anti-Android tones and without the actual PTO document, on MacRumors, Apple Insider, and other Apple blogs.
However, it's really not clear why this proceeding should be seen as such a watershed in the wide-ranging patent war between Apple and its two Android-making competitors. While it's certainly good for Apple to not lose a patent that it has asserted in two major legal actions, this essentially maintains the status quo. Since this is an "ex parte" reexamination, both Samsung and Motorola are absolutely free to use the same arguments used here in later legal proceedings, if they so choose.
Samsung was found to infringe this patent in an ITC case that resulted in an exclusion order, but it only affected older phones that aren't very relevant to Samsung's bottom line. The US trade representative even noted that Samsung had already worked around many of the asserted patent claims in that case before authorizing the exclusion order. This patent was also used against Motorola in federal court in a case that was thrown out by Judge Richard Posner before trial but is now on appeal.
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