This blog post by Scott Daniels, an experienced patent litigator and author of the leading blog on U.S. patent reexaminations (WHDA Reexamination Alert), lists high-profile reexamination requests filed last week, including two anonymous ex parte requests against Apple's two most important multitouch software patents: U.S. Patent No. 7,469,381 (the overscroll bounce, or "rubber-banding", patent) and U.S. Patent No. 7,479,949, the touchscreen heuristics patent (first on the list of inventors: Steve Jobs). Those are by far and away Apple's most important multitouch software patents. In terms of breadth, patents like the photo gallery page-flipping patent or even the slide-to-unlock patent pale in comparison.
I agree with Scott that Google could be behind those filings. Google sees that Apple is asserting those patents against all three of the leading Android device makers (Samsung, HTC, and Google subsidiary Motorola Mobility). Those three defendants also have their reasons to fight against those patents. All three work with Quinn Emanuel (in most if not all litigations with Apple) and appear to use a common inventory of prior art. But theoretically, any Android device maker has to fear those patents. For example, based on tablet computer market share, Amazon would be a logical future target for Apple.
Either of these patents previously survived an ex parte reexamination, at least one of which may have been brought by Nokia, which was embroiled in litigation with Apple at the time. An inter partes reexamination request brought by EMG Technology LLC, a company that sued Apple back in 2008, was rejected by the USPTO.
These are the prior art references at the heart of those new reexamination requests:
'381 ("rubber-banding") patent
(according to the request, these prior art references were not considered or cited by the examiner during prosecution or reexamination)
PCT Publication No. WO 03/081458 on "controlling content display", by AOL/Luigi Lira, published on October 2, 2003
U.S. Patent No. 7,786,975 on a "continuous scrolling list with acceleration"; this is an Apple patent that I've never seen asserted in litigation; the named inventors are Bas Ording, Scott Forstall, Greg Christie, Stephen O. Lemay and Imran Chaudhri
PCT Publication No. WO 01/029702, which later resulted in U.S. Patent No. 7,152,210 on a "device and method of browsing an image collection"; assigned to Philips (named inventors: Elise van den Hoven, Josephus Eggen); this patent application is used against claims 15, 17 and 18 in combination with the first (AOL/Lira) patent, which the request says renders those claims obvious on its own but at least in combination with this Philips patent
'949 ("touchscreen heuristics") patent
(according to the request, the first and the fourth one were not previously considered or cited during prosecution or reexamination, while the second and the third one were, but allegedly become more relevant now in light of those new references)
U.S. Patent Application Publication No. 2002/036618 on a "method and apparatus for detecting and interpreting path of designated position", assigned to Canon (named inventors: Masanori Wakai and Satomi Kayano)
U.S. Patent Application Publication No. 2006/0101354 on "gesture inputs for a portable display device", assigned to Nintendo (named inventors: Hideyuki Hashimoto and Shigetoshi Kitayama)
U.S. Patent Application No. 2005/0012723 on a "system and method for a portable multimedia client", assigned to Move Mobile Systems (named inventor: Matt Pallakoff)
U.S. Patent Application Publication No. 2003/0063073 on a "touch panel system and method for distinguishing multiple touch inputs" (assigned to a group of individual inventors; first-named inventor: Bernard O. Geaghan
Both reexamination requests raise serious issues for Apple to address, though I think the '381 "rubber-banding" patent is more likely to survive than the '949 "touchscreen heuristics" patent. The '949 patent basically just describes gestures that are identify based on an angle of initial movement with a certain level of tolerance. I've criticized this patent repeatedly. Here's a figure from the Wakai patent application (the first prior art reference for the '949 patent) that illustrates the same idea of allowing certain deviations from the ideal angles of each direction in order to understand gestures:
The corresponding paragraphs of the description of that patent application are pretty clear:
[0222] FIG. 35 illustrates the interpretation of angles used in the designated position travel direction determination process. As shown in a diagram 3501, the angle range of 360[deg.] is divided into two zones with respect to the X axis: one zone ranges from 0[deg.] to 180[deg.] in the positive Y axis area and the other ranges from -1[deg.] to -179[deg.] in the negative Y axis area.
[0223] An angle segment having a range of +-35[deg.] (from -35[deg.] to 35[deg.]) with respect to 0[deg.] is interpreted as a rightward direction range. An angle segment having a range of +-35[deg.] (from 55[deg.] to 125[deg.]) with respect to 90[deg.] is interpreted as an upward direction range. An angle segment having a range of 35[deg.] (from 145[deg.] to 180[deg.] and from -179[deg.] to -145[deg.]) with respect to 180[deg.] is interpreted as a leftward direction range. An angle segment having a range of +-35[deg.] (from -55[deg.] to -125[deg.]) with respect to -90[deg.] is interpreted as a downward direction range. Angle ranges of +-10[deg.] respectively with respect to 45[deg.], 135[deg.], -135[deg.], and -45[deg.] are used for other operations.
At first sight, the Wakai prior art reference appears to render the '949 patent obvious, if not non-novel. I don't usually make such statements on prior art since minor differences between the prior art and a challenged patent are often enough to keep a patent alive, but in this case I would really be surprised if this request didn't succeed at least against the broadest claims of the challenged patent.
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