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The iPhone Multitouch Patent Myth

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Daniel Eran Dilger

According to a wide range of frothy mouthed pundits, Apple has announced patented ownership of “multitouch,” and will now destroy the future we deserve by forcing all competitors to stop using a basic concept that was already in wide use long before Apple ever demonstrated the iPhone. They’re wrong, here’s why.
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Emily Litella Journalism.

In large part, the brouhaha over Apple’s multitouch patent is a simple matter of ignorance combined with lazyness on the part of blogger-journalists who, like Gilda Radner’s Emily Litella, weigh in on subjects with their opinion when they really have no idea what they’re talking about and don’t bother to to do a basic sanity check of their facts before rattling off their gut feelings on what they think is the issue at hand.

Back in the 70s, this made for entertaining Saturday Night Live sketches. Today, it’s the new standard of blogger-journalism, where big media conglomerates give real life idiots a prominent platform to spew their ignorance from, and uninformed knee jerk tools respond to these unedited, uninformed rants as if they were worthy of any attention.

Back when we only had a few channels and news came out daily written on paper, we had editors with journalistic integrity who looked over what their writers said in order to prevent their publication from being shamed out of business. Today, with web traffic earning impressions per eyeball, there’s no shame in printing profoundly uninformed conjecture or even straight up lies, because it can supposedly be corrected at some point in the future, doubling the potential for inadvertent audience ad clicks. Perhaps the solution is to slap “beta!” on masthead of these outfits.

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The Multitouch Patent.

Anyone who has ever glanced over a patent filing knows that one can’t simply patent a word like multitouch. Patent filings require making specific claims that define an invention and describe why it is new and useful in some original way that hasn’t been done before.

And yet sites like ZDNet are still filing Emily Litella opinions on the “multitouch patent,” including a recent rambling diatribe by Jason Perlow, a “technologist” with “with over two decades of experience integrating large heterogeneous multi-vendor computing environments in Fortune 500 companies.” How does being a PC installer since the late 80s qualify a person to speak about intellectual property? Clearly, in Perlow’s case, it doesn’t.

Perlow came up with, of all things, the Microsoft Surface as prior art (he consulted Wikipedia, as does apparently everyone else gushing with an uninformed opinion on the matter). The problem here is that Apple didn’t patent the idea of putting two fingers on a table. Apple can’t patent how users interact with a product; it can only patent specific technologies it develops.

In this case, Apple has patented specific claims regarding how it implements touch screen behaviors to deliver a significantly improved user interface. The name of the patent gives that away: “Touch screen device, method, and graphical user interface for determining commands by applying heuristics.” It’s specifically claiming a unique method of determining how the user’s fingers hit the screen in order to decide whether to scroll only up and down, or to scroll around in any direction. This enables the iPhone’s Safari browser, for example, to intelligently lock into scrolling up and down on a column of text when it appears that the user is intending to only scroll up and down, but to allow the user to freely scroll all over the page when they begin by touching the screen in a different way.

It’s so smart and intuitive, few users will even notice that Apple has developed special software just to figure out what they want to do and do it for them. Now that Apple has released the iPhone with all these smart behaviors, it’s far easier to copy its behaviors than to develop a smartphone that works just as intelligently, just as Microsoft copied many of the nearly imperceptible smart behaviors that made the original Macintosh innovative and original over previous graphical interfaces such as those developed at Xerox PARC before it.

Perlow’s clever by half rant jumped to the conclusion that Apple was just patenting the idea of “putting one’s hand on a screen and doing something with it” because he was too lazy to bother actually looking at the patent to understand what was involved. That made it easy to associate the iPhone with Microsoft’s bathtub Surface, which is only related to the iPhone by buzzword.

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The Patent Game.

There are clearly patents that are granted that are not innovative. Apple has a significant full time legal team devoted to shooting down frivolous patent attacks against the company. Few would argue that the current patent system doesn’t need any reform.

However, without patents, Apple would be in the position it was back in the late 80s, when its work was ripped off by its closest software partner after it failed to patent original inventions that cost the company millions of dollars to develop. Back then, Apple patented hardware inventions but didn’t consider it necessary to patent other intellectual property because the company didn’t anticipate that other companies could simply clone its work and get away with it.

The company also thought that its software was protected by copyright, as the courts had seemed to rule in an earlier case where Franklin had flat out stolen the Apple II ROM software to make clone hardware. Apple won against Franklin, but it later turned out that the courts didn’t agree about copyright protection for all intellectual property in the digital world. It also turned out that Apple had granted Microsoft a weakly worded license to various Mac inventions, which had muddied the situation further.

As that case slowly ground through the courts, everyone in the industry became aware that contention over original ideas needed some more efficient method for resolving things than the pre-computer era court system. Documenting original ideas in excruciating detail (with enough leeway to prevent close duplicates) became the basic solution. Using corporate attorneys to deliberate over the legalese and negotiate deals came along as part of the package. On both sides of every patent dispute, there are parties that want to either assign incredible value to specific wordings or to invalidate them as worthless.

In many cases, patent disputes involve two companies with overlapping patent portfolios, involving a complex matrix of negotiations. Both Microsoft and Apple, for example, have patented all manner of aspects of the computing desktop, requiring amicable patent pooling agreements to prevent the two from ending up in gridlock. In order to negotiate the most favorable outcome however, companies avoid intentionally violating another’s patents and giving the owner the upper hand in negotiations.

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The iPhone’s Patents.

That also means that Apple’s iPhone patents are valuable, even when (or perhaps, especially when) dealing with other companies in the smartphone industry. Other smartphone makers will have it in their best interests to avoid violating any patents that seem to be unique and potentially enforceable. The iPhone has a lot of these, and that will ensure that the product Apple developed won’t be cloned to the same degree that Microsoft copied the Macintosh.

That’s outrageous to the simple end of the pundit pool, which sees no value in invention and innovation, and has long celebrated Microsoft’s rise on the back of other companies it had ripped off. To them, the only value-add in electronics is making specifications bigger and price tags cheaper. They have no appreciation for good design or intuitive behavior.

They claimed to be content with DOS and called the Mac a toy until their PC looked the same, at which point they decided they liked the GUI. They claimed the iPod was ridiculously priced until Microsoft came out with a close-as-it-dared version, at which point they celebrated paying the same amount for something nearly as good without an Apple logo. And they remained contemptuous of the iPhone until another company copied enough of it to allow them to relax and decide that an intuitive interface that didn’t look like a shrunken PC desktop was perhaps something they might want.

However, now that they’ve found out that Apple has patented many of the smarter aspects of the iPhone, they’re enraged and, in Perlow’s case, demand that Apple be punished for seeking to protect its innovative developments. Others have suggested that Apple’s patents should be invalidated on a technicality for not citing prior art developed by Wayne Westerman.

Never mind that Westerman has worked at Apple ever since the company hired him away from Fingerworks (which itself was under attack by patent trolls), and is actually cited as an co-inventor on that same iPhone patent. Why is PC-centric punditry such a bunch of Neanderthal knuckleheads?

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If PCs were cars

No other industry seems so devoid of appreciation for creativity, aesthetics, and smart design. How is it that auto magazines praise vehicles’ bodywork styling, clever instrumentation, and sporty handling on the same level as (or even greater than) the engine’s displacement and the size of the rims? How is it that expensive cars can be spoken of as being worth the premium when they actually are, rather than being demonized for being any amount more than the cheapest vehicle available?

My theory: the auto industry has plenty of knowledgeable people that actually care about cars who are available to write about them intelligently, while in the tech industry, anyone who has half a brain can apply their talents at actually working in a tech company, leaving only unqualified blow hards to take positions writing about stuff they really don’t appreciate or understand, people who have accomplished so little in the last twenty years that they have to refer to themselves as a “technologist.”

Imagine opening up Car and Driver and finding some writer blowing off the new BMW and instead bragging up loud ugly knock-off he had imported from China because it was 10% cheaper and had two tailpipes with blue neon underneath. Who cares if it lasts half as long and the airbags might deploy viruses and advertising instead of saving your life in a crash?

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30 comments

1 PeterK { 02.13.09 at 4:29 am }

In large part, that Hulu video above is a simple matter of ignorance combined with lazyness on the part of blogger-journalist Daniel Eran Dilger who posts USA only Hulu videos when he really have no idea what he is doing about and don’t bother to to do a basic sanity check if his blog has any non-USA readers.

2 Jon T { 02.13.09 at 4:43 am }

Thank goodness we now have a decent link to send people to. I have been very frustrated over this, even listening to the guys on MacBreak Weekly and TWIP, who seemed to cave in over it.

Why haven’t they all understood that it is the process and the implementation that Apple have patented It was never the multitouch ‘concept’.

Thank you Dan. If only everyone weren’t as lazy as you are!

My hat’s off – yet again.

3 zpikzpan { 02.13.09 at 4:46 am }

Yes, that Hulu video indeed is a simple matter of ignorance etc. Especially since it says “We’re sorry, currently our video library can only be streamed within the United States”.
Everybody knows, the US Internet is a big bowl. It is technically very challenging to tip the bowl so that video can actually stream to the lesser countries…
(but luckily, the words and picture thingies can crawl out of the bowl themselves to educate Eurotrash commies like me :-)

4 Jon T { 02.13.09 at 4:57 am }

“No other industry seems so devoid of appreciation for creativity, aesthetics, and smart design.”

The trouble is that Microsoft, it’s mis-spent cash, its knuckleheaded army of blind followers are often by envy Apple haters, and all outnumber Apple 100 to 1.

5 fellaintga { 02.13.09 at 5:57 am }

Peter dude its called hotspot shield get over yourself. I have been thinking the same thing you can’t just patent multi touch it way more specific in how that touch is registered.

6 enzos { 02.13.09 at 9:11 am }

> The trouble is that Microsoft, it’s mis-spent cash, its knuckleheaded army of blind followers are often by envy Apple haters, and all outnumber Apple 100 to 1. <

What? you sound like you envy the sheep.

I admire Apple because they strive for excellence and user satisfaction, not greatest sales.

7 greendave { 02.13.09 at 9:17 am }

Ref my greendave { 01.26.09 at 10:28 am } Why Apple’s Tim Cook Did Not Threaten Palm Pre
“Dan, I was hoping you had done some research into the patents – the main reason Apple won’t sue Palm is they don’t hold patents on the multi-touch features that Palm have implemented on the Pre – the ex iPhone/iPod team members at Palm are not exactly stupid”

I guess you have done your research now. However, I rarely, if ever use two fingers on my iPhone – but I do use the ‘bounce; page ending and locked vertical scrolling.

Great section on the cars – I am always trying to explain to people that Macs are like the BMW of computers, but they can’t show off their computer driving down the street so they just don’t ‘get it’!

8 plasticsyntax { 02.13.09 at 11:26 am }

Hulu doesn’t even stream to Canada. I’d appreciate it if you don’t link to Hulu videos anymore, though I understand that may be difficult if that is the only place the video in question can be watched.

9 leicaman { 02.13.09 at 11:46 am }

Heck Hulu doesn’t stream to me in Southern California. PeterK needs to take an anti-depressant or something to calm himself down.

I love the car comparison. It’s something lots of technonerds love to say is impossible to carry off, comparing cars and computers. But that’s just a lack of imagination on their part. Or they simply don’t get the difference between metaphor and simile.

Pundits really are sad pathetic people who prove the adage if you can, do, if you can’t, blog. (Teachers are usually competent, which leaves them out.) As a real journalist for 24 years, I could not agree more with the problem of tech journalists. They can’t seem to get over the fine line between reporting and advocacy. The latter being a major stumbling block for good reporting.

10 nat { 02.13.09 at 11:46 am }

Great section on the cars – I am always trying to explain to people that Macs are like the BMW of computers, but they can’t show off their computer driving down the street so they just don’t ‘get it’!

As people move more and more to laptops, that will likely change.

I mean, I’m attending a rather small community college where most people have pretty low incomes, yet for every Dell or HP laptop, I see two MacBooks. There are a ton of crummy Windows PCs and only four desktop Macs in the whole building, yet after the eMacs were replaced with newer PPC iMacs, now they’re always being used. And of course coffee shops, where most people seem to bring their laptops, are always dominated by Apple’s computers.

11 rosko { 02.13.09 at 12:10 pm }

“… while in the tech industry, anyone who has half a brain can apply their talents at actually working in a tech company, leaving only unqualified blow hards to take positions writing about stuff they really don’t appreciate or understand, people who have accomplished so little in the last twenty years that they have to refer to themselves as a technologist.”

Completely agree. My RSS reader used to be jam packed full of blogs and news sites, but it has been seriously trimmed down one by one after getting sick of the complete lack of knowledge (and sometimes interest) of some writers, and to a lesser degree the pile of brainless 10 year olds (it must be) who submit comments.

I used to read ZDNet and other similar outlets, but when I found out directly from one of their bloggers that they get paid per page view rather than for quality I got so pissed off. The completely fact-devoid stories I used to have a good laugh at started to all reek of “If I write something controversial (especially about Apple) I will get loads of reads and comments and therefore more money”. In fact, almost every ZDNet blogger, regardless of their supposed subject area, ALL often write about Apple. I wonder why! It’s like they get rewarded for writing shit. And then all the trolls in the comments. Complete waste of life reading it.

Nowadays I only try to follow people who I know are passionate about what they write. I don’t even care if they get all the facts right all the time – that would be an unrealistic expectation anyway.

Keep up the good work, Dan. And I’m sure I don’t need to tell you to ignore the fool above who attempts to discredit you and distract from the points made in your article by complaining about the completely unimportant Hulu issue. These are the sort of morons I get frustrated with. They mustn’t even read the article – just jump straight to the comments area and start spewing. I’m sure you’ve seen it a thousand times.

12 Vorticity Advection » Blog Archive » Emily Litella Journalism { 02.13.09 at 12:28 pm }

[...] and silly on the world of computing (and sometimes politics).  Today, he wrote about “The iPhone Multi-Touch Patent Myth,” where bloggers and journalists are raising a fuss over what they believe is Apple stifling [...]

13 zpikzpan { 02.13.09 at 12:29 pm }

Rosco, for the sake of diminishing your frustration level with morons, try reading my comment while having your funny bone activated. If that doesn’t work, sod it, then I must indeed be making a dastardous attempt at discrediting and distracting Dan.

14 hmciv { 02.13.09 at 12:46 pm }

There have been some b-a-a-a-a-d car reviews as well. The worst mismatches are usually a car driver who reviews a SUV or vice versa.

15 Per { 02.13.09 at 1:08 pm }

in the tech industry, anyone who has half a brain can apply their talents at actually working in a tech company, leaving only unqualified blow hards to take positions writing about stuff they really don’t appreciate or understand, people who have accomplished so little in the last twenty years that they have to refer to themselves as a “technologist.”

I’d love to see the ZDNet guys comment the above :D

16 rosko { 02.13.09 at 1:12 pm }

zpikzpan, chill – it was PeterK i was alluding to (in the first comment above he generalised that “[DED] really have no idea what he is doing” due to the Hulu video). I could see the funny bone in your comment, don’t worry about it.

17 Desmistificando a patente multitoque do iPhone » AppleMania.info { 02.13.09 at 1:53 pm }

[...] mais detalhes no extenso e altamente recomendável artigo completo de [...]

18 David Dennis { 02.13.09 at 2:12 pm }

The Amiga was admirable in many ways, but I don’t think I have ever seen an easier to crash platform. Look at the thing cross-eyed and the screen would slide down and the red and black “Guru Meditation” message would show up. And once that happened, there was no way to save your work or salvage anything.

Even Windows 3.x did a little better than that – you could usually switch applications and save most of your work before it died.

D

19 LuisDias { 02.13.09 at 3:39 pm }

Well I thought PeterK was rather funny. I also don’t get to see Hulu’s video so I don’t even know what I’m missing. I guess it won’t be much, but I still think this kind of frontiers is simply stupid. But hey, they’re the one’s in charge.

20 VernK { 02.13.09 at 3:48 pm }

One thing to consider in the auto reporting vs tech reporting is the relative age of the industries. Tech is some thing like 3 decades old, the auto trade a little more than a century now. As a fan of first 30 years of the auto industry (OK, all autos) I can dig up lots of just plain stupid commentary very similar in tone to what we see now around tech. My point being that after a few generations of auto journalism, the standards have improved and the subject matter well defined. Which is not to say there aren’t plenty of either vendetta or fanboy reviews for autos, far from it.

Yours
Vern

21 gus2000 { 02.13.09 at 5:28 pm }

The auto industry is mature, while the PC industry for 30 years has accelerated as fast as Moore would let it. If I get the same car as you but with double the horsepower, I’m only demonstrating my sexual insecurities.

When PCs went from 4.77MHz to 6 or 8 or 12MHz, that was a huge difference in what could be accomplished. Same with the memory and disk capacities. My original IBM PC couldn’t even store a single song from my iPod, let alone be able to decode it. This paradigm is slowly changing, since improvements are now incremental. Ten years ago, PCs were made to surf the web, do email (aka AOL) and play “Quake”. Today we surf the web, do email, and play “Crysis”. The raw capability is no longer paramount, but journalists are not going to give up on a winning formula until the old one collapses completely.

Even in the early days of the “Hi-Fi”, one was expected to know how to soldier, and a pre-assembled stereo was for sissies. A modern audiophile would pluck out his own eye before cracking open one of his priced components.

I think we need to start a new movement: digitalphile?

22 davesmall { 02.13.09 at 9:06 pm }

This is one of the best blog articles I’ve ever read. Steve Balmer is an Apple stalker.

23 zaxzan { 02.13.09 at 9:50 pm }

>”My point being that after a few generations of auto journalism, the standards have improved and the subject matter well defined”<

Sorry Vern, but yourself and some others above seem to have totally missed the point about journalism …
Well-researched.
Investigative.
Responsible.
Trustworthy.
Principled.
Ethical.

A lot of the “pundits” (wrong choice of word in my view as it means expert, but I understand Dan’s derogative line of thought) are not journalists by any stretch of the imagination, they are at best merely commentators, and are not dissimilar from the majority of their readers, it is often up to those very readers through their own comments to correct the erroneous omissions, inaccuracies, mistakes, fallacies and the outright Lies.

The pubescence of the tech industry or the web has nothing at all to do with the maturity of the auto-industry and coverage of it by the media.
In the past persons with an interest in cars or any other field of pursuit for that matter, were limited to the news papers, books, magazines and the occasional television program, and all this within the confines of their particular country.
Since the mid nineties the World Wide Web has allowed people to find facts and figures, knowledge, advice, trivia, empirical understanding …
In short Information. Information can be found in a space of minutes or hours, and with careful scrutiny, consideration and evaluation a person is almost certainly enlightened.

However, as we all know the web is a two edged sword and amongst other ills, it is also the reason that today we get “pundits” at certain Tech media conglomerates and personal blogs who have been given a position and the circumstances to espouse to well over 2 billion plus people via the web, nothing wrong with that except for the inept, bungling amateurs, the reprehensible, morally corrupt shysters, and the lazy, ignorant gossipmongers.

Most journalists have a point of view or information that they wish to contribute to the community, via their media outlet, however the number of outlets for means of expression has proliferated by a factor of eleventy-ten (a very big number, kinda like bajillion) so it’s not like the old days (pre the mid-nineties in this case) and the reviews, tests and reports on such and such car.

Besides I for one, will not sit back and wait 80 years while the misfits get their collective acts together.

Today more than ever it’s STILL about MONEY and the MOTIVATION behind the report.

News, was once a bastion of propriety, is an extremely cheap commodity, which these days is by subtle and not so subtle design is intrinsically intermeshed with entertainment and business. Lets face it most news these days is entertainment!
The media conglomerates world wide know that, and that it must be delivered constantly – 30 / 60 / 24 / 7 / 52 factually or not. – I know, as it has been my profession over the last 30+ years, the ethical changes and content remodeling over that time are eleventy-ten (immense).

Sorry for long post n’ rant, as you can tell I despise the current media situation.

24 tpaluchniak { 02.13.09 at 11:15 pm }

Interesting comment about Apple hiring away Westerman from Fingerworks. Common consensus is that Apple bought Fingerworks along with all it’s associated multi-touch patents. That certain is plausible as Fingerworks abruptly shut down shop, except for customer support, and much of it’s key staff seems to now work at Apple.

Moreover, Apple owns many patents in regards to multi-touch. So, it really seems like an exercise in futility to weight Apple’s chances of defending it’s use of multi-touch on the iPhone based on one patent. Finally, there might be many different implementations of multi-touch, but until the iPhone I can only think of only one that uses it on a phone.

Just my thoughts.

25 Apple karma eats blogger-journalist dogma? « no-comply.org { 02.14.09 at 12:06 am }
26 Boycott Novell » IRC: #boycottnovell @ FreeNode: February 14th, 2009 { 02.15.09 at 6:28 am }
27 KA { 02.16.09 at 9:55 am }

“I love the car comparison. It’s something lots of technonerds love to say is impossible to carry off, comparing cars and computers. But that’s just a lack of imagination on their part. Or they simply don’t get the difference between metaphor and simile.

I usually agree with this viewpoint, as computers and cars are so different that most metaphors and similes fall apart if you think about them, which is generally the idea. However, this article is one of the few I’ve seen that manages to pull it off.

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