A few days ago, I already highlighted the breakthrough it meant for Apple that a rockstar judge and law professor (who was the most-cited legal scholar in the United States in the 20th century) adopted Apple's proposed interpretation of the most important term in the language of the '263 "realtime API" patent. Circuit Judge Richard Posner's claim construction was ordered in a district court lawsuit (even though he's a circuit judge, he is sitting, for that particular case, on the United States District Court for the Northern District of Illinois "by designation") in which Apple is currently asserting seven (out of originally 15) patents against Motorola (and Motorola countersuing Apple over three out of originally six patents), but the same patent is also at issue in Apple's appeal against unfavorable parts of an ITC ruling on Apple's first complaint against HTC. The Court of Appeals for the Federal Circuit will certainly take note of Judge Posner's interpretation of Apple's '263 patent.
Yesterday, Apple presented Judge Posner's order to the ITC in the investigation of Apple's complaint against Samsung (inv. no. 337-TA-796). The Chicago case against Motorola and the ITC case against Samsung overlap with respect to this patent:
U.S. Patent No. 7,479,949 on a "touch screen device, method, and graphical user interface for determining commands by applying heuristics"
Steve Jobs is the first name on a long list of inventors who contributed to it. Apple uses this patent against Android all the time. Besides the aforementioned Motorola and Samsung lawsuits, Apple is also asserting this one against HTC in Delaware (where several Apple lawsuits are currently on hold, with no chance of a decision before next year at the earliest, due to some bad tactical decisions Apple's legal team made back in 2010). Furthermore, Apple asserted the Australian equivalent of this patent against Samsung and won a preliminary injunction against certain Samsung products down under. While the preliminary injunction was lifted following a full-bench review, this was about the proper standard for granting a preliminary injunction in general, so the Australian decision doesn't give Motorola, Samsung, HTC or anyone else leverage against Steve Jobs's touchscreen heuristics patent in particular.
Yesterday, Apple filed a "notice of supplemental authority regarding claim construction" in the ITC investigation of its complaint against Samsung, telling the ITC the following:
Complainant Apple Inc. hereby submits this Notice of Supplemental Authority Regarding Claim Construction. On January 17, 2012, in the matter Apple Inc. v. Motorola, Inc., No. 1:11-cv-08540 (N.D. Ill.), Circuit Judge Richard Posner, sitting by designation, denied Motorola's motion for summary judgment of invalidity and noninfringement of Apple's U.S. Patent Number 7,479,949 (the '949 patent), which Apple has asserted in this investigation. In denying Motorola's motion, Judge Posner discussed issues relevant to the parties' claim construction positions with respect to the '949 patent, including indefiniteness and whether the claims are means-plus-function claims subject to 35 U.S.C. § 112(6). Judge Posner’s order denying summary judgment is attached as Exhibit A.
Judge Posner's take on the '949 patent is very useful to Apple with respect to both the validity of this patent and its potential infringement by Android:
Motorola claimed that the term "heuristics" is broad and vague (in fact, some of the inventors of the patent admitted in their depositions that "heuristics" is "sort of a vague word") that it renders the patent indefinite. If this term was considered indefinite, the patent would be invalid.
Judge Posner, however, says that "defining a word is often more difficult than grasping its meaning in a specific context". He considers Apple's proposal that this word be understood as "one or more rules to be applied to data to assist in drawing inferences from that data" an "adequate definition".
From a policy point of view, I agree with Motorola: this patent is far too broad for my taste. It monopolizes an entire category of problem-solving strategies. That concern of mine isn't alleviated at all by Judge Posner's and Apple's definition, which is more verbose but just as broad from a technical/practical point of view the way I see it.
Again, this was a policy kind of statement. I obviously don't mean to say or imply that Judge Posner may have made a mistake. But if the patent was indeed interpreted by all courts as broadly as what Judge Posner's order suggests, this would be exactly the kind of patent that would enable Apple to wage "thermonuclear war" on Android.
Motorola also wanted Judge Posner to find that it doesn't infringe the patent because it uses a higher tolerance value (accepting movements with a slant of up to 33.7 degrees as vertical movements) than an example in Apple's patent description (27 degrees). I'm not surprised that Motorola's related argument was unavailing. The scope of a patent depends on its claims, and while the meaning of claims can be narrowed, the difference between 27 and 33.7 degrees isn't sufficient to suggest that Motorola really employs a different problem-solving strategy than the one covered by Apple's (admittedly very broad) patent.
The '949 touchscreen heuristics patent (including its international equivalents) will be very important to watch. It's difficult to compare the importance of this one to the '263 patent. In my view, both are very powerful, but they relate to very different fields of technology (multitouch for the '949 patent, network APIs for the '263 patent).
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