Post-‘pinch’? Apple patent-case win could point to new digital age for smartphones

By Craig Timberg and Hayley Tsukayama, Published: August 27

If the swipe is the essential gesture of the smartphone revolution, the pinch is a close second. Many of the coolest things that can be done on today’s mobile devices — from finding an out-of-the-way bar to determining whether a thunderstorm is going to ruin your party — are made easier by placing fingers on the screen and sliding them.

Friday’s $1 billion court ruling for Apple, which upheld patents for what manufacturers call “pinch to zoom,” among other popular features, has clouded the future of the gesture for anyone inclined to buy mobile devices from other companies. Apple made clear its determination to press its advantage Monday, announcing plans to seek preliminary injunctions on eight phones made by Samsung, the loser in the case.

The ruling has sparked searches for possible alternatives to the pinch — some have suggested finger taps, circles, wiggles — while also highlighting questions about whether a company should be able to patent how humans interact with their machines once those interactions become standardized.

“I don’t know what you do about ‘pinch and zoom,’ ” said Tim Wu, a Columbia University law professor critical of the ruling. “That’s the cost of this decision. All the phones have to use less-efficient tools.”

Several legal steps remain. The trial judge will hear the request for an injunction banning some Samsung products on Sept. 20, though a hearing on a preliminary injunction could come sooner. Apple probably will ask the judge to triple the damages, to more than $3 billion, as permitted when patent infringements are found to be “willful,” though the damages could be lowered as well.

An appeal is almost certain. There are related legal fights in several other countries, including Japan, one of the world’s leading buyers of consumer electronics.

“On appeal, that will be the big question: Are these patents valid?” said American University law professor Jorge Contreras. “These are kind of intuitive, everyday gestures.”

The roiling legal action makes the future of “pinch and zoom” unclear. The court cases do not generally cover the latest generation of mobile devices, which were introduced after the suits were filed, but analysts expect manufacturers in the future to avoid features that might infringe on Apple patents.

Microsoft already pays license fees to Apple for several of the technologies in its smartphones, meaning the impact of the court fights is most serious for devices running Google’s rival Android operating system. Apple could charge licensing fees to companies that make Android phones and want to use the pinch feature, or it could block use altogether.

Neither Apple nor Samsung replied to requests for comment for this article. Samsung on Friday portrayed its loss as a defeat for American consumers. Apple chief executive Tim Cook wrote to employees over the weekend: “For us this lawsuit has always been about something much more important than patents or money. It’s about values. We value originality and innovation and pour our lives into making the best products on earth.”

Other companies long had experimented with finger gestures, but the pinch became popular soon after the iPhone was introduced in 2007. The gesture became to seem natural only after Apple educated users about it, said Morgan Reed of the Association for Competitive Technology.

He expects to see something else eventually take its place.

“I have a feeling that the next way that it’s done, once that comes up, may make us look at pinch-to-zoom and say, ‘Oh, how awkward!’ ” Reed said.

Ken Yarmosh, a developer of applications for Android and Apple smartphones, said Samsung could add zoom buttons or create apps that automatically optimize Web pages and photos.

“You’d think they have a whole team that could come up with some other kind of innovation,” Yarmosh said. “That’s what this case is all about — innovation being rewarded.”

Other experts worry, however, that the reward by the jury in the Apple case exceeds the market value of the patents and that the ruling may chill competition.

Santa Clara University law professor Brian J. Love, who teaches patent law, said that if courts start making mega-awards for patent violations, the costs to consumers could spiral quickly. The average smartphone, by some estimates, relies on 250,000 patented technologies.

“Any time a patent covers what becomes a de facto industry standard, you have problems,” Love said.

At issue is whether individual patents cover innovations that are distinctive advances from what existed in the past. More deeply, intellectual-property law attempts to encourage innovative research by allowing inventors reasonable profit without giving unwarranted monopolies to the makers of popular products.

The consumer impact often is hard to determine in advance. Smartphone users are accustomed to manipulating photos, maps and text to see more clearly on small screens. If Apple had lost Friday, there may never have been an incentive for manufacturers to consider alternatives to the pinch. The same goes for other popular innovations for which Apple claimed valid patents, including the way a screen bounces back when it scrolls too far, or the rounded rectangle shape of the iPhone.

A common metaphor, as experts have contemplated the impact of Apple’s victory, is to invoke features on automobiles that, while once innovative, gradually became standard, making for better, safer cars over time.

But an even more relevant comparison may the proliferation of graphics-based operating systems on computers, which relied on users pointing and clicking a mouse instead of typing dense lines of code. Though such operating systems were initially developed by Xerox, Apple popularized them on its Macintosh computers only to see Microsoft eventually take over the market with a similar product, Windows.

Apple sued then, too, culminating in a 1994 appeals court loss that cost the company potential market share but eased the spread of a popular, intuitive way for people to use their computers. Now, it is hard to find a computer that does not have a graphics-based interface.

Before Friday, the pinch appeared to enjoy a similar trajectory toward nearly universal acceptance. Just last week, Maria Acuna used the pinch feature on her Samsung smartphone to enlarge a friend’s wedding photo.

“I wanted to check out the bride, her face and dress,” said Acuna, an office administrator at a Washington-based nonprofit.

Her phone, the Galaxy S II, is among those Apple is asking the California court to block from stores.

Cecilia Kang contributed to this report.


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