Oh Sure, Now The Patent Office Realizes Apple's 'Rubberbanding' Patent Is Both Obvious And Not New

Patents

from the a-bit-late dept

Tue, Oct 23rd 2012 12:39pm — Mike Masnick

We've expressed concerns in the past about the crappy job that the USPTO does in approving patents, when it's clear that, the majority of times that the USPTO is asked to go back and double check its work, it is forced to admit it was wrong. This happens quite frequently in high profile patents used in lawsuits as well. And while some judges are willing to wait for the USPTO to admit its errors, too often the courts just rush through, assuming that the patent must be perfectly valid. Given all that, it's worth noting that the USPTO has now issued a non-final rejection of all claims in Apple's infamously ridiculous "rubberbanding" patent, over the ability for a page to "bounce back" if you scroll to the edge. The key claim in the patent was rejected for failing both standards for patentability. That is, the court found it to be both obvious and not new. Of course, if they had asked anyone who knew anything about programming, they could have told you that ages ago.

It is important, of course, to note that this is a "non-final" rejection -- and even "final rejections" often are not really "final." Apple can, and will, go back to the USPTO and plead its case, and it's not uncommon for "non-final" rejections to go back in the other direction eventually. Of course, all that really does show is how arbitrary and silly the patent system is, in which we award many millions of dollars to patent holders based on the whims of a small group of patent examiners who can't keep their story straight. Either way, this patent was one of the ones that the jury had ruled Samsung infringed upon, so the judge in the case may need to revisit that part of the ruling.

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Filed Under: obviousness, patents, rubberbanding
Companies: apple, samsung

25 Comments

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fogbugzd (profile), 23 Oct 2012 @ 11:47am

If it is hard to tell whether a patent is not new or obvious then it probably is not new or obvious. If there are serious questions about the idea's originality because there were a lot of similar things running around then it probably was not very original.

The default should be not to grant when the examiners and rexaminers have to strain to see the difference between this "invention" and existing technology.
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justok (profile), 23 Oct 2012 @ 12:51pm

Didn't I see on here (or somewhere) that the USPTO doesn't have full access to teh interweb? If that's true, doesn't that explain why they can't find prior art?
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Sonar, 23 Oct 2012 @ 12:53pm

The whims of a small group
"...based on the whims of a small group of patent examiners who can't keep their story straight..."

I wouldn't blame the examiners. They just don't have the time to perform some proper research before granting a patent (roughly 15 hours spread over a few years).
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Me again, 23 Oct 2012 @ 1:10pm

Re:
http://www.techdirt.com/articles/20120918/12131620417/usptos-reality-distortion-field-web-filter-blo cks-critics-like-eff-welcomes-maximalist-lobbyists.shtml
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Lord Binky, 23 Oct 2012 @ 1:25pm

USPTO- 'Hmm... You know, now that I look at it....'
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Travis, 23 Oct 2012 @ 1:33pm

I remember...
I remember seeing a text viewer back in 1992 that would open up text files and make them scroll past you in one smooth motion, and when you hit the bottom of the file it would... bounce!!! OMG!!!

Apple is such a troll.
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Anonymous Coward, 23 Oct 2012 @ 2:02pm

Final rejections
"and even "final rejections" often are not really "final."

Indeed, I argued a final rejection from the USPTO (on a patent for a manufacturing process that had already been granted by the European Patent office) and they reversed it and granted me the patent.

From the objections and prior art that the first examiner had been throwing at me, it was obvious that he hadn't understood the subject matter.
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Anonymous Coward, 23 Oct 2012 @ 2:03pm

Re: Re:
So, yes?
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Me again, 23 Oct 2012 @ 2:03pm

Re: Re: Re:
What?
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Atkray (profile), 23 Oct 2012 @ 2:19pm

Re: The whims of a small group
I'm sorry but if I just don't have the time to do my job, my employer will find someone who does.

I can imagine what would happen if the people at burger places stopped putting the hamburger patty between the slices of bread because they just don't have time.

As has been stated, the system is broken. The examiners who don't have time is just one of the many broken pieces.
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Rich, 23 Oct 2012 @ 2:39pm

Re: Re: The whims of a small group
You can only put so many burgers in buns in a given amount of time, before something has to given. It has nothing to do with your assumption that the job is easy.
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gorehound (profile), 23 Oct 2012 @ 2:42pm

Apple is a Company I do not want to ever buy from.
Never did and will not intend on Supporting.
Proprietary, Walled-In, Ripoff others ideas, and now the Big Schoolyard Bully.
You may be able to reach the Mindless Consumers of the World and you do have your intelligent Fanbois................I am glad I am neither of those.
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Andrew (profile), 23 Oct 2012 @ 2:56pm

I hadn't heard of 'rubberbanding' in connection with this patent before, and I genuinely thought that Apple had patented something to do with rubber bands, like perhaps enclosing their phones in a narrow strip of rubber to protect against damage or to improve reception.

Depressingly, my 30 seconds of whimsy would probably make for a stronger patent than many of those discussed here. Particularly if I managed to include "on a computer" in the claims.
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LivingInNavarre (profile), 23 Oct 2012 @ 4:39pm

Re: Re: Re: The whims of a small group
I think I will take out a patent on 'insertion of over cook semi beef patty into round bi-symmetrically separated bread container'
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Flix (profile), 23 Oct 2012 @ 7:17pm

I don't know if the patent was new or not; I'm actually curious to see the prior art. But my intuition as someone "skilled in the trade" is that the concept is definitely NOT obvious.

Do you remember how things worked pre-iPhone? It would actually be hard to imagine because there was no such thing as natural-direction, touch&grab scrolling (or maybe there was) but the rubberband effect is, in my opinion, a nifty little user interface innovation that greatly improves usability.

If it were so obvious, how come we never saw it anywhere else, for example in desktop web browsers?
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Anonymous Coward, 23 Oct 2012 @ 7:27pm

"and while some judges are willing to wait for the USPTO to admit its errors, too often the courts just rush through, assuming that the patent must be perfectly valid. "

Actually, as a matter of law, unless the court is specifically asked to rule on the legitimacy of the patent (as opposed to if the defendant has violated it) they must accept it as fact.

Judges rule on the case in front of them, not some hypothetical case that isn't.
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Anonymous Coward, 23 Oct 2012 @ 8:34pm

Whenever I read articles like this using words such as "arbitrary" and "whims", I am always left with the firm and definite impression that the person(s) purporting to explain how the process works are largely unfamiliar with how the process actually works. It is a legal proceeding before an executive agency, and just like all legal proceedings it is the evidence actually before the decision maker that controls. Yes, evidence, and not supposition, speculation, unsubstantiated assertions of supposed facts, etc.
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Anonymous Coward, 23 Oct 2012 @ 9:56pm

"it's not uncommon for "non-final" rejections to go back in the other direction eventually."

Rubberbanding, both literally and figuratively!
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Sarah Black (profile), 23 Oct 2012 @ 10:57pm

Re: I remember...
I too, remember such a text viewer. If I recall correctly, it was an "ANSI ART" viewer programmed by a team named "ACiD". Back when running a WWIV BBS, and later a DLX BBS, I would see the "ACiD Viewer" for the PC included in all the LHA/ARC/PKZ/DMS/WRP/ZIP files, along with the usual .ans & .asc group and file_id.diz description txt files.

while in manual reading mode, the ANSI Viewer would "bounce" when got to the bottom of your long ansi art. very simple stuff.

Although it was nice, it was nothing new. I had seen several "loaders" for the Commodore Amiga which did the same thing.
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Niall (profile), 24 Oct 2012 @ 2:29am

Re:
Look at the above example. Not hard for our group to spot in no time flat...
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Anonymous Coward, 24 Oct 2012 @ 2:30am

Re:
It would be for a programmer, but not for a Patent Office clerk.
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Niall (profile), 24 Oct 2012 @ 3:11am

Re:
It is a vast misuse of resources and failing of the system if every single patent is almost automatically given, and then requires expensive and time-consuming litigation to challenge or verify. If this is the case, why bother with a patent office? Just let people make claims and let the courts sort it out... which would be insane. So, if you are going to have a patent office, let it have a) adequate staffing and resource levels, and b) access to appropriate expertise to determine actual likely validity of patents, and c) no inherent incentive (financial or political) to specifically grant rather than deny patents (should be neutral).
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Anonymous Coward, 24 Oct 2012 @ 3:40am

Re:
You don't see it on Web browsers but there were plenty of Web sites that through the use of Flash or javascript had a myriad of scrolling effects, bouncing effect being just one example of that.
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Anonymous Coward, 24 Oct 2012 @ 8:33am

Re: Re:
"Automatically"? You have apparently not been involved in matters before the USPTO.
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Jeremy Lyman (profile), 24 Oct 2012 @ 8:54am

Re: Re: The whims of a small group
If you're a good worker and still not meeting your quotas, the company should either streamline it's SOPs, hire more workers, or raise their prices.

Unfortunately in this case streamlining patent applications means approving them all, not finding a more efficient way to examine them.
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