UI War Brewing: Microsoft Multi-Touch Patent App Predates Apple's

Last Updated Mar 26, 2009 11:27 AM EDT

Smell the hint of smoke in the air? It actually started when Microsoft announced that a full multi-touch interface would be built into Windows 7. But it's now getting thick as the company posted a fuller description of the new interface, which includes not only single-touch, but multi-touch features. Providing the other half of the friction is Apple's recently-granted broad patent on multi-touch UI technology. But although Apple has indicated its readiness to enforce the patent, facing off against Microsoft could prove the business equivalent of shooting yourself in the foot with a howitzer. Particularly when Microsoft has a multi-touch patent application that predates any of Apple's filings.

Microsoft's Windows Touch looks pretty slick, at least in this video demonstration by the BBC. Ready availability of multi-touch interfaces has proven a real advance in usability, to say nothing of popularity. What would the iPhone have been like with an ordinary interface? Just another handset. Apple's work on that front has been impressive, and you can understand why the company would want to protect its technical and aesthetic lead. However, it's one thing for Apple to growl at Palm, which is considerably smaller and with fewer resources. It's quite another to take on Microsoft, which is, arguably, even better positioned than Apple to cause trouble, in a diverse set of ways, on the intellectual property front.

Consider the inherent points of attack that already exist on Apple's patent. A Microsoft researcher, who has been involved in UI design for decades, was able to rattle off a veritable touch interface history, which included examples of multi-touch implementations that preceded Apple's by years.

There is other evidence of multi-touch interfaces predating Apple's patent. In 2006, before the earliest filing date on Apple's multi-touch patent applications, Jeff Han of NYU's Media Research Lab demonstrated a multi-touch computer interface at the Adobe- sponsored TED2006. Given that Han started his company, Perceptive Pixel, in 2006 and that the site lists patents pending, it's likely that he would have had to file for the patent before the technology demonstration, which could have counted as a form of disclosure, which would mean that any multi-touch patents he had would have predated Apple's.

At least as significant is an active patent application called Multi-touch uses, gestures, and implementation with the following abstract:

A tablet PC having an interactive display, which is touchscreen enabled, may be enhanced to provide a user with superior usability and efficiency. A touchscreen device may be configured to receive multiple concurrent touchscreen contacts. The attributes of the multiple concurrent touchscreen contracts may be mapped to operations performed on the computing device. As a result, a user can trigger the execution of the toggle accessibility aid operation and the screen rotation operation with greater convenience. Moreover, the tablet PC may be configured to map an operation to a hand gesture or input.
The patent application filing date? May 12, 2006, or a few months before Apple. The patent assignee name? Microsoft Corporation.

That could lead to what is called a patent interference case, according to Raymond Van Dyke, a partner with Merchant & Gould. (Caveat: the firm does extensive work for Microsoft.) "There are two aspects," he says. "There's the conception of the invention that happened as of a certain date. And then from that date you have to have reduction to practice." One party that conceives of an idea second but physically realizes the invention first might have the edge in ultimately getting the patent.

All this does at the moment is to increase the uncertainty around the Apple patent. But this is just one way in which Microsoft could flex its IP muscles. For example, Microsoft has 10897 patents granted since March 27, 1989. (Patents have a 20 year lifespan.) That could translate into a lot of artillery should legal fighting break out

Given Microsoft's stated interest in using touch on mobile, it could combine forces with others, like Palm, to create a stronger legal attack. Furthermore, Apple does have to coexist with Microsoft in a number of ways, even if the people in Cupertino don't particularly want to. What if the latter used indirect arm twisting in the form of withholding newer versions of Office from the Mac?

To maintain the peace, and potentially avoid losing its multi-touch patent, Apple might find itself cross-licensing with Microsoft -- which means with virtually all PC manufacturers going forward, and possibly with all makers of Windows Mobile-based handsets. That would eliminate much of the legal edge that Apple might have hoped to get.

[UPDATE: Mitsubishi has an application, dated May 3, 2006, for emulating a mouse with a multi-touch display. That is more limited in scope, but could cause problems with basic interface activities. Microsoft has an April 19, 2006 application for "pixel-accurate targeting" using multi-touch.]

Windows Touch image courtesy of Microsoft.

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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.