As reported by the IPKat, Apple have been awarded US patent 8,046,721 for 'unlocking a device by performing a gesture on an unlock image'. This is a continuation of US 7,657,849 which was recently rejected by the Dutch courts for being obvious. A key piece of evidence used by the Dutch courts was the Neonode N1m phone which, as shown in this video, can be unlocked by swiping a finger from left to right across the touch screen.
I thought that this was an interesting case for a number of reasons. Firstly, it's almost a textbook example of a 'patent likely to generate ridicule by the general public.' Is this justified? Secondly, if US 7,657,849 was rejected, is US 8,046,721 likely to fare any better? Last but not least, regardless of the merit of the patent it is an extremely narrow patent for a very specific invention. With that said, does it actually matter to anybody other than Apple that this patent was granted?
By way of a quick recap, in order to be granted, a patent has to be (amongst other criteria) both novel and inventive. In other words, the invention disclosed in the patent can't have been previously made available to the public but neither should it be merely a trivial variation on a previously disclosed invention.
Novelty is reasonably straightforward to decide. Check the patent claim, pull out all the features recited in that claim and compare with the previous disclosure (referred to as prior art). If the prior art contains all the features of the claim then that claim lacks novelty. In practice, its a little more complicated than that (and you'd struggle to find a piece of case law that deals with novelty in quite that way) but I think that captures the essence of it.
Inventive step or obviousness on the other hand is rather different and can be extremely difficult to decide. If the patent claim includes features that are not described in the prior art, then the claim will be novel. The question then is whether those extra features add anything to the claim, or whether they're relatively minor things that any reasonably skilled person would come up with as a matter of course after reading or being shown the prior art. Similarly, if there is no prior art at all, then the claim is certainly novel but is not necessarily inventive – it may just be a collection of trivial features that nobody has bothered to try and patent before. However, it will probably be a lot harder to argue that an invention is obvious, if nothing even vaguely like it has been made available to the public before.
The tricky thing about inventive step, is that most things are obvious in hindsight. To properly decide whether something is obvious or not compared one or more pieces of prior art, you need to consider what would be obvious to somebody reading that prior art at the time at the time the patent was filed. This isn't easy to do because it's a necessarily artificial point of view to have to take. Equally tricky, from the point of view of invalidating a patent, can be constructing a reasonable argument that will stand up in court. Arguing that something is obvious because 'look at it - it just is' rarely works. There has to be a valid reason why.
For the Apple 'slide to unlock' patent, in my opinion (for whatever that's worth), the Dutch court got US 7,657,849 right. Claim 1 of this patent reads as follows:
1. A method of controlling an electronic device with a touch-sensitive display, comprising: detecting contact with the touch-sensitive display while the device is in a user-interface lock state; moving an unlock image along a predefined displayed path on the touch-sensitive display in accordance with the contact, wherein the unlock image is a graphical, interactive user-interface object with which a user interacts in order to unlock the device; transitioning the device to a user-interface unlock state if the detected contact corresponds to a predefined gesture; and maintaining the device in the user-interface lock state if the detected contact does not correspond to the predefined gesture.
I strongly suspect that the same Dutch court would also reject US 8,046,721. Claim 1 of this patent reads as follows:
1. A method of unlocking a hand-held electronic device, the device including a touch-sensitive display, the method comprising: detecting a contact with the touch-sensitive display at a first predefined location corresponding to an unlock image; continuously moving the unlock image on the touch-sensitive display in accordance with movement of the contact while continuous contact with the touch screen is maintained, wherein the unlock image is a graphical, interactive user-interface object with which a user interacts in order to unlock the device; and unlocking the hand-held electronic device if the moving the unlock image on the touch-sensitive display results in movement of the unlock image from the first predefined location to a predefined unlock region on the touch-sensitive display.
This is a little bit more specific than the previous claim (and corresponds more directly to the actual iPhone unlock screen) , in that the user has to maintain continuous contact with the screen during the unlock gesture and has to explicitly touch the unlock image to interact with it.
However, in both cases, the only significant difference between the claim and the 'swipe to unlock' gesture used on the Neonode N1m, is the addition of a user interface widget to provide a visual clue to the user that a particular gesture will unlock the phone. Adding such a visual clue certainly makes the phone easier to use but I don't think that adding such a clue is inventive. Arguably, that is a major point of any graphical user interface – to provide visual clues that interacting with the interface in a particular way will have a desired effect on the device running that interface.
On the other hand, without the Neonode prior art it is a lot harder to see how you would set about arguing that either claim is obvious. The same argument about providing a visual clue would still apply but why have that particular gesture to unlock the phone? For that matter, why use the touchscreen at all? Why not just have a physical unlock button? If having a minimal number of physical buttons is important to your phone design, why not press the physical button once to activate the touchscreen and then again to unlock the phone? Or hold down the physical button and perform a gesture with the whole handset, e.g. a flick or a shake (assuming your phone includes an accelerometer). For that matter, if you have your heart set on using the touchscreen to unlock, why not simply designate a number of points on the screen that have to be touched simultaneously to unlock the phone? Both the slide-to-unlock patents specify a moving unlock image, so using a non-moving unlock image avoids both patents.
Having a number of alternative options isn't necessarily enough to make any one of those options non-obvious. However, by the same token, if even a non-skilled person can think up four alternative options for unlocking a phone, then I think it also becomes more difficult to argue that a different option, absent any clue from the prior art, is obvious.
For the same reason, for the hypothetical case, where there wasn't any prior art for unlocking a phone with a touchscreen gesture, I personally wouldn't have any problems with either of these slide to unlock patents. They're far from earth shaking but they do solve a problem in a distinctive and eye catching way, so I can understand why a company would want to try and protect that particular solution to the problem. Yes, they do prevent competing companies from using that solution but neither is it particularly difficult to find alternative solutions that avoid the patents altogether. Slide-to-unlock is very much a nice to have feature than one that would be a serious detriment (or indeed any kind of detriment) to competitors if they couldn't use it. In which case, I would find it hard to really get too indignant about the patents.
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