Legendary Judge Posner upholds largest part of Apple’s touchscreen heuristics (‘949) patent in Motorola case

“In its litigations against Android, Apple is still on a quest for the Holy Grail in terms of a few patents that are broad enough to be powerful (to the extent that Android device makers would have to settle) but nevertheless able to withstand challenges to their validity,” Florian Mueller reports for FOSS Patents. “So far, those Apple patents on which any court rulings have come down are either broad but (likely) invalid or valid but too narrow to bring about settlements that would meet Apple’s strategic needs.”

“Without one or both of the above kinds of progress, Apple is neither able to defend the uniqueness of its products nor in a position to command significant license fees,” Mueller reports. “At this juncture, the patent that has, relatively speaking, the best prospects of singlehandedly securing victory for Apple — and the patent that probably scares the living daylights out of Google’s Android team — is the ‘touchscreen heuristics’ patent (whose inventors include Steve Jobs). In June, there will be trials at which Motorola and Samsung have to defend themselves against this one.”

Mueller reports, “In January, Judge Richard Posner, a legendary judge and legal scholar, provided a first analysis of that patent that was very much in Apple’s favor in its Chicago litigation with Motorola… On Thursday, March 29, Judge Posner entered his related order, which is a clear win for Apple over Motorola (and Android in general). Jury trials come with considerable uncertainty, but based on Judge Posner’s conclusions, Motorola will realistically be unable to avoid a finding of infringement and will have to come up with some really good invalidity arguments if it wants to avoid a disaster.”

Mueller writes, “Apple won in Chicago, Apple won at the ITC, and now Motorola and Samsung, and the Android ecosystem at large, face a serious threat. If Android devices can’t implement any of the gestures described [in the full article], they won’t be competitive.”

Read more in the full article here.

MacDailyNews Take:

I’m going to destroy Android, because it’s a stolen product. I’m willing to go thermonuclear war on this.Steve Jobs

[Thanks to MacDailyNews Readers “Fred Mertz” and “Dan K.” for the heads up.]

Related articles:
Apple’s thermonuclear war on Android – March 29, 2012
Judge Posner praises Apple’s claim constructions as ‘superior,’ calls Motorola proposal ‘ridiculous’ – March 14, 2012
Google ordered by judge to give Apple information on Android development – March 5, 2012
Legendary judge hands Apple key patent interpretation victory against Android – January 30, 2012
Steve Jobs: ‘I’m going to destroy Android, because it’s a stolen product; I’m willing to go thermonuclear war on this’ – October 20, 2011


  1. I have to say that I have dog in this fight. Many years ago programming was not patented but copyrighted. A program is a set of standardized command that a computer can follow. Patenting a program is like patenting a a recipe for chocolate brownies, which is unpatentable. Gestures should also be copyrighted but not patented. The technology for detecting these gestures should be patented instead.

    1. Good point, RGKahn.

      Years ago, Amazon got a patent for their One-Click shopping design. I never saw it as worthy of a patent. Neither did the patent office for Europe, which did not grant one.

      If I were a lawyer for Apple or Amazon, though, I’d probably file a patent for anything which years ago might have been copyrighted. Otherwise, that would be giving the field to the other side.

    2. You make a great point. And I would agree mostly… however,

      Generic drugs manufactures can patent their drugs and virtually copy the original product BUT ONLY after the inventors’ product has been sold on the market for several years. In the USA I think that is about 7; in Europe I believe about 12 years. The generic drug recipe must NOT include the exact ingredients.

      So the chocolate brownie – or – KFCs secret recipe – or – A&W root beer – and – COCACOLA all are vulnerable according to you. And as you can see, after years of those patents – others where eventually allowed to come to market for various reasons. Most we do not know why, yet, perhaps the patent or copyright laws changed or the company allowed a licensing agreement.

      Patent the technology of how the hardware senses input. Great. Yeah. I believe that was done and handled properly by Apple.
      But the iPhone also is a rare step forward which brought major change to the entire world – like a light bulb. And Apple should be granted several years of free reign and power for this leap.

      Ofc, there are many companies making lightbulbs these days but most likely with licensing agreements that allow them to do so — with alteration to differentiate the product accordingly and signed back to the originating company. Same was Kodak and Fuji film. One company made warm tones while the other stuck to cooler ranges but Kodak had a monopolizing lead.

      However, the iPhone is a very complex device with new technologies for the world wide market. Muti-touch had been developed long before and Apple bought the main company with the most research done. I do not know all what (Fingerworks) patented or copy wrote. Yet, Apple had done the same with SIRI; making it the next UI for market also. They should rightfully have a upper hand and Google should have never been allowed to do what is has nor should have Samsung been able to create a competing device so soon while under contract with Apple to produce the iPhone.

      The iPhone should be a protected USA interest… and handled so world wide granting Apple a 7 year lead with no competitors kicking or functioning the same as iPhone. After that period Apple has the rights to license the technology out or be copied.

      Thats how i see it.

      1. The patent period is currently 20 years, but because pharmaceutical co’s file before drug trials begin 7 years on the market is the minimum time a drug patent effectively lasts. The typical range is 7 to 12 years before generics come along.

      2. Coca Cola chose not to file for IP protection because it would have to disclose its formula. As long as it is secret, it is relatively safe (and without a time limit!).

        Getting back to the thread, I agree with RGKhan’s rationale. In a perfect world, that would be true. However, Apple is just playing by the rules that the patent system put in place, and it is doing so in a much more aboveboard way than many of its competitors.

    3. I think both programming code and gestures should be patentable, but not copyrightable. Both copyright law and patent law had relatively short terms of protection. Less than fifteen years. The whole purpose of the law was to put valuable works in the public’s hands after rewarding creators for a short time. This spurs innovation. You just have to look to the fashion industry that has no copyright protection for verification of that.

      Patent law still has a relatively short period of time for protection (20 years). Copyright law is over 100 years. The difference is the public hasn’t been able to keep copyright law reasonable because of corporations generally all standing against the public interest, where companies have fought each other to keep patent law in check. The difference in terms of protection is also crazy considering the subject matter of a patent has to truly be valuable, where with copyright it merely has to have a little originality to it.

  2. Of coarse, without multi-touch Googles Android will be instantly inferior to Apple iOS. And that is exactly what should happen. Strip Android of Multi-touch and all other functionality that is stolen from Apple – hence Android can never compete.

    I understood that, before Apple showed the world the iPhone it bough (Fingerworks). A research Lab who spent years on mutli-touch input for touch screens. I would think Apple owns and has rights to almost every possible finger swipe and every combination imaginable.

    WebOS, Rims OS2 and Windows 8 are competitors better positioned and will face the same issues. Once Android is dead – lets hope Apple does not appear to be monopolizing the technology but merely protecting its IP. And if wishes, could license with limits the Muti-Touch to others – as Apple deserves so.

        1. You can own the heck out of a technology. Being the only one with a technology is not illegal. Even having a monopoly is not illegal (It’s the abuse of said monopoly that is illegal). However the law only recognizes having a monopoly on a market not on a technology.

          For instance Microsoft had/has a monopoly in the computer operating system market. There is a market for operating systems, they have a monopoly on it. If Microsoft owned some special piece of technology on the other hand, that is not a market but a specific piece of technology. There is no law against a company being the sole owner of a piece of tech.

          For instance

      1. You are absolutely right, unfortunately it is a distinction most lay people can’t make.

        If you invest in and invent a technology, it is yours to exploit to regain your investment. If this protection would not be available, nobody would spend on R&D and our technological evolution would bring to a halt.

        I am so tired of everyone claiming monopoly when a company exploits it’s IP. Definition of Monopoly:

        “The exclusive possession or control of the supply or trade in a commodity or service.”

        The key term being “commodity or service”, meaning something anyone can provide but is denied the opportunity to by unfair practices.

        1. However you only described the abuse of a monopoly. It is perfectly legal to posses a monopoly. It is now however legal to abuse the monopoly.

          Microsoft had/has a monopoly on operating systems. That monopoly by it’s self was not illegal. Anyone can make an operating system and sell it but Microsoft used illegal and anticompetitive means to prevent others from being successful, that was the abuse part.

  3. My wife inherited some antique pottery years ago. We had it appraised by an expert. The appraiser commented that some of the marks on the bottom of the pottery were in reference to the patent that the maker held. Not only was the shape of the pottery but also the design of the painted decoration on the pottery were patented. I was so surprised that such things could be patented. And these go back nearly 100 years. So I wonder if such kind of patents are still in effect.

    1. It is called a design patent, and yes they are still in effect. That is in part what Apple is fighting Samsung about. Namely, Samsung’s products look too much like Apple’s products.

  4. While I am a big fan of Muellers articles I simply can’t digest his reasoning on this:

    “The public would be benefited by the disclosure after the expiration of this patent in 2028. Yes, 2028. I can’t see that the ideas Apple came up with here — and those are good ideas, for sure, but sooner or later others would have come up with them anyway”

    That could be said of any idea that was patented. It is amazing to me how people denigrate a patent as ‘obvious’ after the fact. If it was so obvious, why was nobody doing it before? It is the genius of inventors that makes something simple to understand and use. Cue the light bulb.

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