Is Apple's new iPhone apps menu patent valid? I say no. Let's take The Long View...
A couple of days ago, my old chum Larry Seltzer alerted me to a patent granted recently to Apple. As I've been knocking around this space for a few years, he asked me what I thought of it. At the risk of over-simplifying, U.S. patent #8,082,523 as granted protects a device that, while handling a simultaneous phone call, allows the user to push a button that returns to a menu of apps. This would allow the user to fire up another app -- for example, to look up a phone number, check their schedule, or consult a web page -- while remaining connected on the phone call. Is this a big deal? For a patent to be valid, it needs to describe a genuine invention. This requires passing two key tests:
- Novelty: Would the invention have been non-obvious to an averagely-skilled practitioner of the art?
- Prior art: Has anyone demonstrated this before?
This patent was filed in early 2008. One could argue that, at this time, such an "invention" would have been obvious to almost anyone skilled in the art of smartphones. However, such judgments are always subjective, so they're not the best way to challenge a patent. However, there's a simpler, more objective way that this patent fails. There's prior art. I had one of the original Handspring Treo 180s in 2002; I'm reasonably sure you could ,even then do what the patent describes, but I can't find the manual to confirm it. But I'm 100% sure my Palm Treo 600 could do this in late 2003 (the manual confirms it, in the sidebar on page 43).
Some commentators, including Larry, doubt that this prior art is enough, because the patent talks about a touch-screen. However, that's not an issue, on two counts.
First, only a bizarre definition of "touch screen display" would discount the touch screens of the Treo line -- they were ostensibly pen-based, but I rarely used the stylus with mine, prefering to tap icons and buttons with a fingernail. Second, the patent makes it clear that the menu of apps can also be called up using a "menu button," which is how it was done on the PalmOS Treos.
As is usual for patents of this type, there are a boatload of subsidiary claims, but Apple's key claim is clearly pre-empted by more than four years. On the face of it, it's crazy that this patent was granted.
Would Apple have known about the Treo line? I have to believe it did. Many of the "innovative" iPhone features were originally developed by Handspring or Palm -- for example, a ringer switch, ubiquitous backup via USB, and per-app private storage. Indeed, in the early years of last decade, the Treo was the phone to be seen with inside Apple.
How did we get here? The reality is that software patents are granted too easily. In the U.S., this is mainly because of an appeals court ruling some years ago in favor of Oracle. This tragic ruling required the U.S. Patent and Trademark Office to lower its approval threshold. In other words, the grant of a patent is no longer a sufficient basis for claiming ownership of an invention. It also needs to be tested in court. By the way, I'm not religiously opposed to software patents. But I am unhappy about errors such as this. Indeed, I'm named as a co-inventor of European patent 0497022, and I've consulted as an expert witness for technology companies defending themselves against invalid patents.
Your thoughts? Leave a comment below...
Richi Jennings is an independent analyst/consultant, specializing in blogging, email, and security. As well as The Long View, he's also the creator and main author of Computerworld's IT Blogwatch -- for which he has won American Society of Business Publication Editors and Jesse H. Neal awards on behalf of IDG Enterprise. A cross-functional IT geek since 1985, you can follow him as @richi on Twitter, pretend to be richij's friend on Facebook, or just use good old email: TLV@richij.com. You can also read Richi's full profile and disclosure of his industry affiliations.