Apple Multi-Touch Patent on Shaky Ground

Last Updated Jan 18, 2010 8:19 AM EST

As my colleague Chris Dannen points out, there's a lot of Sunday morning quarterbacking in the patent matchup between Nokia (ADR) and Apple (AAPL). But what most commentators are missing is that the Apple multi-touch patent is a court dispute waiting to happen, and asserting it against Nokia could well result in a finding of invalidation.

It goes back to what I found last February: the ground for Apple's patent is actually very shaky, particularly on some of the more fundamental claims. As I mentioned then:
Multi-touch touch screen interfaces have been around at least since the early 1980s, according to Bill Buxton, a principal research at Microsoft and an authority on user interfaces. Publicly disclosed devices could sense finger movement and translate gestures. "If I use a pinching gesture to zoom in or out of a map, or zoom or rotate a photograph, that was demonstrated absolutely crystal clear to everybody and anybody by 1983 by Myron Krueger," Buxton says. "Furthermore, it was demonstrated later in 1991 by a guy named Pierre Wellner."
Yes, Buxton works for Microsoft, but it didn't take a lot of effort to verify what he was saying. And there are other problems for Apple. One of the co-inventors listed on the patent, Wayne Westerman, who had co-founded FingerWorks, which Apple had acquired, mentioned some of the potential prior art in his University of Delaware doctoral dissertation, and some of the basic multi-touch work done at the school is patented by the university. If any of the work to which he referred is seen as prior art, then Nokia could challenge the patent under the grounds of so-called inequitable conduct, essentially a charge of fraud in the patent process.

If that's not enough, then there's another bugaboo for Apple: Microsoft (MSFT). Apple had apparently opted for a special type of accelerated patent process that let it move through quickly. However, as I found back in March, Microsoft had filed a multi-touch patent application that predated Apple's. I think this is why Apple has been so slow to bring any action, although it has made loud noises in the past that it would "not stand to have our IP ripped off." That's all well and good if the IP is actually Apple's and something for which it can obtain and maintain legal protection. But if the validity of its patent is called into question, expect Microsoft and others to step forcibly in to assert their own IP claims.

All that may be the reason that Apple has yet to bring suit against Palm, or anyone else trying a multi-touch interface. The issue isn't the upcoming Bilski decision, as Chris suggested, because the Apple patent has nothing to do with business methods and everything to do with implementation of technology. No, the Supreme Court ruling in question should be from the the KSR case, which helped set a higher "obviousness" bar to clear. It's not whether Apple has refined a multi-touch user interface, but whether the changes are significant enough in a legal sense to be patentable.

That's why Apple has talked plenty but been slow to action. Asserting the multi-touch patent in court is the company's tactical nuclear option -- nowhere near dangerous enough to bring the house down, but having the potential for causing plenty of damage.

Image via stock.xchng user kovik, site standard license.
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    Erik Sherman is a widely published writer and editor who also does select ghosting and corporate work. The views expressed in this column belong to Sherman and do not represent the views of CBS Interactive. Follow him on Twitter at @ErikSherman or on Facebook.

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