Apple Unlocks Another Patent War Weapon In Smartphone Market

Stephanie Roberts is a JD candidate at Osgoode Hall Law School and is enrolled in Professor Mgbeoji’s Patents class in Fall 2011. As part of the course requirements, students are asked to write a blog on a topic of their choice.

On October 25 2011, the United States Patent and Trademark Office (USPTO) granted Apple Inc. yet another patent, this time on their “Slide-to-Unlock” feature for smartphones and tablets. This now well-known feature, found on every iPhone, iPad and iPod Touch, allows users to unlock their device by sliding their finger over an image on the touchscreen from one side to another. The patent is titled “unlocking a device by performing gestures on an unlock image,” and the abstract, claims and description can be found here.

Since news of this patent grant was released, the blogosphere has been inundated with speculation about the potential impact this patent may have on other makers of smart devices. Since the release of the popular iPhone in 2007, slide-to-unlock features have become commonplace among most touchscreen devices. Many commentators have noted that every Android device now infringes Apple’s patent, while others wonder whether unreleased devices, such as Windows 8, will also infringe this patent. News of the grant even caused Taiwan’s premier, Wu Den-yih, to direct government agencies to assess the adverse impacts the patent might have on Taiwanese companies. The actual effect of this new patent remains to be seen, but in the current patent war waged between Apple and other smart device manufacturers such as HTC, Motorola and Samsung, this Slide-to-Unlock patent serves as another weapon available for use by Team Apple. In light of the new authorized biography of Apple’s recently deceased CEO Steve Jobs, which revealed the former CEO’s intention to “destroy Android,” it will be interesting to see how this new weapon is employed and whether it will hold up in court.

Granting of this patent has also bolstered discussions about the need for patent system reform in the United States. Commentators have been critical of the fact that the patent was granted to Apple despite evidence of prior art. According to Title 35, Section 103 of the United States Code, a patent cannot be obtained for an invention if the subject matter of the patent would have been obvious to a person having ordinary skill in the art, given the prior art in existence at the time the invention was made. This non-obviousness requirement essentially means that where an invention contains only obvious differences from other known inventions (“prior art”) a patent is not to be granted. In the case of Apple’s Slide-to-Unlock patent, the alleged prior art is the Neonode N1m, a mobile phone manufactured by a small Swedish company, which was using this slide-to-unlock feature one year prior to Apple’s patent application in December 2005. The granting of this patent to Apple was especially glaring to critics given a decision by a Dutch judge this past August that declared the European counterpart of this patent invalid on this very basis. The Dutch court found that the only difference between Neonode’s feature and Apple’s feature is that Apple’s patent includes an “unlock image” that moves with one’s finger over the touchscreen. The Dutch court, unlike the USPTO, held that this unlock image was obvious given prior art, not inventive and too trivial to obtain patent protection.

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