Apple Sued For Using Tabs In OS X Tiger

rizzo320 writes "AppleInsider is reporting that an Illinois-based company and its Nevada partner have filed a lawsuit against Apple Inc., alleging that Mac OS X 10.4 'Tiger' infringes an interface patent relating to the OS's nearly universal use of tabs. The suit was filed in the patent troll's and forum shopper's favorite venue: Marshall, TX. The patent in question is 5072412, which was originally issued to Xerox in 1987, but is now owned or licensed to IP Innovation LLC and its parent Technology Licensing Corporation. 'Category dividers triggered by Spotlight searches, as well as page tabs in the Safari web browser, bear the closest similarity to the now 20-year-old description' of the patent, according to the article. IP Innovation is requesting damages in excess of $20 million and an injunction against future sales and distribution of Mac OS X 10.4. Software patent reform can't come soon enough!"

Mozilla?

So... Why did they suddenly decide to go after Apple now when Mozilla has been in, urm, flagrant violation of this supposed patent for much longer than Apple?

Re:Mozilla?

Apple's got money.

Re:Mozilla?

Why not against IE7/Microsoft ?
They certainly got more cash :)

Re:Mozilla?

They've got too much money (for lawyers).

Re:Mozilla?

I think this response has merit.

Apple have lost several high-profile patent cases in the last year or two. They'll probably hit Apple first and see if it works, then use the decision against anyone else they feel is infringing. It'll be harder for MS to throw money at it if one judge has already decided that tabbing infringes.

Re:Opera next?

What? Firefox has always had tabs, The very first release (back in the days when it was known as Phoenix) had this feature built in (i.e. not a plugin).

http://tech.cybernetnews.com/2006/07/26/cybernotes -a-look-back-at-firefox-phoenix-01/ [cybernetnews.com]

Re:Mozilla?

how about for prior art they drag in a filing cabinet from the 60's and show the tabs on top of each folder that separates things by category *grin*

Cashcows

IANAL, so let me rephrase that in layman's terms.

The patent basically looks like it covers anthing resembling a modern user interface.
The patent more specifically stresses mechanics like the Opera/IE/Mozilla browser tabs, spreadsheet "workbooks", the Windows taskbar, you name it.
So, in other words, just about any software on the market today.
Well, that's what I seemed to gather from the passing glance I gate the patent text. So I might be wrong. Please correct me if that's the case.

Assuming I'm right, this is a "blanket patent" that can be sicced on anybody they chose to.
One would expect them to go after several small companies at once, with several lesser damage claims, companies that might not afford to pay a lawyer.

Instead, they go after a rather large company (again, correct me if I'm wrong, but Apple is a pretty big company), and claim a relatively unimpressive sum (20+ mil).
I could only suppose again that damage claims must be related to number of users that the product was sold to (or somesuch).
Still, going after Microsoft and claiming damage for... heh... EVERYTHING Windows and Windows-based Microsoft ever made and sold, now that would be a huge sum we're talking about.
Claiming Apple wouldn't have the money to go into court for this is pretty ridiculous... well, unless, maybe they're counting on Apple settling out of court for such a paltry sum ?

I can only hope they get smashed in court, and smashed good.

Re:Cashcows

No.

The mechanism which you describe is used in the porn, ad, etc industries where the small guys have positive cash flow and something can be collected out of them. That is not valid for most small guys in the software industry. Further to this, there are not that many small guys that do stuff that do anything new and UI related. Most just reuse what is supplied to them in the latest SDK and do not do anything new.

As far as the claim size, it is aimed to make Apple seriously consider settling.

If they settle there is enough war chest to pay for a couple of legal daisycutters to be dropped on some small guys (if you find any to drop it in the first place, no small commercial UI companies left around). There will also enough money to lob one big bunkerbuster at Redmond and fight a properly sized claim.

Re:Cashcows

Your suggestion is (paraphrasing):

PatentTroll: Give me $20m
Apple: Why?
PatentTroll: We'll sue MS with it
Apple: OK then.

Wait, does that sound like SCO?

Re:Cashcows

The porn industry is the favourite target of web interface patent trolls. Nearly every web interface patent troll in the last 5+ years has gone after web porn companies as the first target.

The primary reason is exactly this:Wait.. there are patents in the porn industry? The rest of the web does not take the case seriously and laughs it off until the troll has collected a sufficient war chest to go after bigger guys. At the same time nearly any web business method, antipiracy or ui patent is applicable so you have plenty of targets to chose from.

Re:Cashcows

Oh come now... It can be rephrased much more simply...

It's like a 3-ring binder, but "on the internet!"®©

All rights reserved. "on the internet!" is a registered trademark of Patent Trolls Inc.

Re:Cashcows

You've got the right idea. Yes, they can sue any modern desktop or web browser. Their strategy appears to be to get a small settlement (only several million) from Apple, who might prefer that to a lawsuit that might cost just as much (and in which they might lose). Then, given that settlement, they can go after bigger fish, like, say, Microsoft, and demand much larger sums of money, while saying that the industry (i.e. Apple, a prominent member in that industry) has already acknowledged their patent as being valid. Not that they need the industry's seal of approval, but it can be of help.

Re:Cashcows

Wow, so it's like what MS is trying to do to Linux right now.

1.Set a stupid precedence with some unknowing schmuck(s) of a company who knows nothing of the common good.
2.Apply precedence ad nauseam, creating more FUD than anything real.
....
3.Profit!

I find the state of business quite sad. There are too many companies who try to get away with dubious deeds just to make a buck.

Re:Cashcows

Apparently there is some "prior art" (IANAL) from about 1985, from apple of all places! If anyone has ever used a really old mac, they'll know about the Switcher program that allowed programs to switch in and out of memory, effectively allowing the system to "multitask" (it could switch between already started programs, but only one could use the system at any time). Even better, I'm pretty sure the switcher had a scrolling effect applied to programs as they were switched into and out of memory, giving a "spacial relationship" between the "views" you were navigating. Since they would have internal documentation regarding the development and use of this technology (and maybe even some UI patents of their own), this might be a slap in the face to any kind of settlement.

Re:Mozilla?

Can you lose rights to a patent for not protecting it?

IANAL, but no.

However, if you don't go after infringements in a timely fashion (e.g. wait for the patent to become an industry standard, or wait for the target company to become successful), then you risk losing rights.

Sooo... Yes?

Re:Mozilla?

That doesn't make the patent system any less broken.

I think you're missing out on the point of patents. When the framers of the Constitution set up the trademarks, copyrights, and patent law it was specifically for a case like this. They imagined that old man Wilcox would invent an idea and patent it, but without any resources to develop his idea, he'd sit on his patent and wait. Then when rich old Farmer Gray took his new farming device to market 15 years later and proved to be a financial hit at the farmer's markets Wilcox would swoop in unveiling his submarine patent and demand a piece of the action, if not take over the device entirely from Gray! Early capitalism at its finest.

Re:Mozilla?

Swooooooosh

Re:Mozilla?

Greetings! You are in flagrant breach of numerous patents, trademarks and copyrights owned by my clients, Nike. [nike.com] To avoid further escalation send 28 million dollars immediately to: Account 10986754, Bank of Nigeria, Zurich CH.

Re:Mozilla?

The original framers of the Constitution did not imagine patent trolls at all. At that time, one needed to demonstrate a working prototype of the invention. That prototype was also referred to to remove ambiguity as to what was being patented.

Not true any more.

I'd point out that the patent was filed for more than 20 years ago, but not granted until 1991.

I'd also point out that the patent implies an implementation much different than how such things are implemented today. The idea is not subject to patent, only the implementation -- which is demonstrably different.

Re:Mozilla?

back in the 80's when Jobs was "inspired" by the work at Xerox Parc?

No, Bill Gates was "inspired"... Jobs actually licensed the technology.

Re:Patent expired?

This patent issued in 10 Dec 1991. At that time in the US, a patent was in force 17 years after issue - so that patent becomes public domain in Dec 2008 giving it another 20 months. Since then, when the US changed its rules a few years ago to get closer to the practice in the rest of the world, new patents are now in force for 20 years from the date of application.

Re:Patent expired?

Patent coverage is effective on date of filing; but only actionable after the patent is issued. That is, if you file in 1987, you have to wait until the patent is issued (1991) until you can start enforcing it---even against those who started using the patented idea in 1990. But, the patent coverage runs for 20 years from filing date (even then).[1] The patent was filed in March, 1987, which means the patent should have expired by now.

What we appear to have here is a patent troll who waited until the last minute to file, hoping to grab as much infringing money as possible. However, the doctrine of laches prevents this sort of behavior. Laches means that you cannot sit on your rights and constructively encourage infringement only to later sue. Think of it as entrapment or inducement.

More importantly, this idea has been mainstream for years. Visual Basic (et al.) allow for this sort of tabbing behavior. The question is whether M$ is licensed, or whether the troll has been sitting on his rights. Beyond that, we can't know all of the ins and outs of the case at this point.

[1]: http://en.wikipedia.org/wiki/Patent [wikipedia.org]

Re:Patent expired?

Patent coverage is effective on date of filing; but only actionable after the patent is issued. That is, if you file in 1987, you have to wait until the patent is issued (1991) until you can start enforcing it---even against those who started using the patented idea in 1990. But, the patent coverage runs for 20 years from filing date (even then).[1] The patent was filed in March, 1987, which means the patent should have expired by now.

You are wrong. Because a patentee has no rights prior to the issuance of a patent, patent damages are not generally available prior to issuance. This was recently changed with the availability of patent publication in the United States. Now, a patentee can get damages back to the date the patent was published, if the claim found to be infringing is substantially identical to a published claim.

Also, as the previous poster noted, the term of United States patents [wikipedia.org] changed after this patent was granted. For patents in force before 1995, the patent lasts the greater of 20 years after filing or 17 years after grant. Thus, this patent is in force until 2008.

Re:Patent expired?

There are multiple dates that matter in patent law:

• conception - the day someone came up with the invention
• reduction to pracice - the day someone figured out how to fully make the invention (after functional testing, etc)
• filing date - the actual day the patent application was filed
• publication date - the day the patent application is published (usually about 1 and 1/2 years after filing)
• grant date - the day when the patent comes into effect

Damages are only available back until the publication date at the earliest, and that is only if the patent claims didn't change during the time between publication and grant. Prior art has to be known either more than one year before filing, or before conception.

Re:Is there an English version of this patent?

People bitch about software patents, but in reality they are not that different from any other patents.

Or, to put it another way, you have no idea what you're talking about. Software patents are totally different from normal patents because they protect ideas instead of implimentations. This is inevitable since software is almost always translated from a source language, which is often a trade secret. If software patents were the same as normal ones it would be the details of this source code which is protected (as it is by copyright law already). Allowing patents on software extends the protection to any implimentation in any language and often with any algorithm. This is vastly more protection than a normal patent which covers only one, clearly defined, method and effectively allows a software patent to lock up an entire idea or concept.

Additionally, this patent covers something which is as old as the hills. Tabs for organising pages are almost as old as paper itself. Putting that onto a computer simulation of paper is not something that should be patentable at all.

TWW

Re:Is there an English version of this patent?

To put it another way, this is like being able to patent the gasoline engine.

If it transforms gasoline into motive force, it's in violation of the patent. You could build a gasoline powered steam engine and it'd be infringing. The patent could have been for a 2 stroke, then a company comes along and starts mareting a rotary engine and the patent holder sues.

Tabs have been used to assist in organizing and finding specific parts of paper-based information for ages. Desktops, filing cabinets, trash cans and many other objects have made appearances in GUIs, so why not tabs?

Re:Is there an English version of this patent?

That's not strictly true. Patents protect methods. Whether that method involves a series of gears, a paintbrush's movement on canvas, or some lines of code isn't really relevant, generally.

Saying it's not patentable is a false conclusion based on hindsight. If someone put a computer in front of you with a text-based interface, you wouldn't immediately look at it and say "tabs!" That's the answer! Obviously, you wouldn't even immediately create the idea of a GUI. A basic graphical interface was possible long before it was actually implemented. In 1981, I wouldn't have been able to find a single reason to identify a tab patent as obvious. Just because an idea is simple doesn't mean it's not patentable. Adding flush rivets to planes is a very simple idea, but it took a tremendous amount of engineering and trial-and-error in manufacturing processes. The end result is patentable because they figured out how to make it happen. The method itself is a trade secret (just as the source code for implementing a software feature can be). You'll note that most patents say "a method where..." or something similar and the patent describes the results. This is why.

Organizing information to display in tabs is a method. At one time, it was novel and non-obvious. There was no reason to reject a patent for it ("I should have thought of that!" isn't one) in 1981. The problem is that software patents last too long (things which were groundbreaking even just 5 years ago are old news), and infringement suits have become a method for profiteering. In 2007, tabs and scroll bars are old hat. Patent infringement suits should have to be defended from day one. If you wait 15 years to sue (at which time, 99% of the industry has gradually adopted that method), you're profiteering. There is no legitimate excuse. If you have been defended your patent since the beginning, that's an entirely different story.

I don't have a problem with patents being granted for novel innovations. I do feel that the USPTO should insist on a uniform licensing model, though, and that patents should need to be defended as the holder becomes aware of the problem, not several years later when the fruit is ripe, so to speak. I also believe that once your idea has propagated to the point where no one can even pinpoint the source, it's too late to sue. It's the difference between holding a patent on a gasoline engine in 1800 and trying to sue for one in 2007.

Re:Is there an English version of this patent?

That shouldn't be allowed. The orignal meaning of the word patent is open (as in patently obvious).

Actually, "patently obvious" and "patent" come from "letters patent" which itself comes from Latin, but that's neither here nor there. The openness refers to the opening of the design at the expiration of the period, not to the clarity and precision of the filing itself. A patent has never been expected to provide enough information to produce the result--only enough information to describe it sufficiently for identification.

For the reasons I stated above, allowing a partially secret patent is a contradiction in terms

Only from a poor understanding. Trade secret trumps patent in IP poker.

You should not be allowed to patent "a means of producing mechanical energy from gasoline. It's got metal bits in it, and that's all I'm saying." But you should be allowed to patent a specific implementation, e.g. the four stroke internal combustion engine. That would not prevent someone else inventing another means to the same end, e.g. a turbine.

Start from the beginning. "A means of producing mechanical energy from a combustible fuel source" absolutely was patentable (not by 1850, though). The external combustion engine was patentable when created; the internal combustion engine was patentable, too. From there, someone could come up with the idea of the piston engine to drive a rotating shaft attached to a wheel. Another person could come up with the idea of a turbine. Yet another could come up with the rotary engine. Using these engines to drive a fan blade (propeller) instead of a wheel would be novel, and then using a series of fan blades to compress air, or using that propeller to generate direct lift would branch out from there. This process continues, and the original patents lapse as innovation compresses them into a mass of "basic principles."

Each of these innovations builds from the previous in a new way. But each of them also was non-obvious when it was invented. The wheel seems utterly obvious to all of us alive today, but it obviously wasn't when it was invented (or it would have been invented sooner). Absurdly simple things like four-stroke engines or counter-sinking screws or using a visual desktop metaphor weren't always so.

Re:Is there an English version of this patent?

People bitch about software patents, but in reality they are not that different from any other patents.

The only reason you are right about that, is because patents are horribly broken in lots of fields - pharmaceuticals, for example.

They often do not work anything like as well as they are supposed to in advancing technology, and they do a lot to impose extra costs and barriers to entry.

People on Slashdot dislike software patents in particular, partly because they are particularly bad, and partly because that is what they know most about. There is also very good evidence that software patents do not work because software only recently became patentable. Technology did not advance any faster after this, therefore software patents do not work. We do not have as solid evidence on other types of patents.

See my past Slashdot comments and my blog for more.

Re:Useful timing

A month or so after the one programmer left at apple finishes the iPhone.

Marshall, TX

So why is Marshall, Texas such a great venue for patent extortion? The city's web [marshall-chamber.com] pages [marshalltexas.net] don't seem to have an answer, but it does seem to be a nice place.

One wonders if this boils down to a single judge, who might appreciate a free MacBook.

Re:Marshall, TX

So why is Marshall, Texas such a great venue for patent extortion? The city's web [marshall-chamber.com] pages [marshalltexas.net] don't seem to have an answer, but it does seem to be a nice place.

One wonders if this boils down to a single judge, who might appreciate a free MacBook.

The judge T. John Ward has a reputation for pushing through a speedy trial (which also means less time to find prior art), and to usually side with the patent holder. http://www.technologyreview.com/InfoTech/wtr_16280 ,300,p1.html [technologyreview.com]

"Juries in East Texas, unlike those in Houston, Dallas or Austin, are much less likely to have a member with any technical training or education, which exacerbates the problem from the defense perspective, but makes East Texas federal courts an attractive venue for would-be plaintiffs, who know that the jury will, instead, gravitate toward softer or superficial issues that are difficult to predict." http://www.wsgr.com/news/PDFs/09202004_patentpirat es.pdf [wsgr.com]

Re:Marshall, TX

Maybe you should be entitled to a jury of peers. Even in tech cases. Meaning a jury of engineers and not a jury of joe stupid.

Obviously not.

In a murder case, you're trying to prove that you're not a murderer. And they already get juries of not-murderers. Duh.

I can see it now - "Your Honor, I'd like to request a jury made up of my fellow serial killers." "Is that a guilty plea I hear?"

Maybe

What a joke. Maybe they should go and get the manilla folder people in on this too, because of their ingenious system of tabbed browsing.

Birth of GUI

It's gotta be said that Xerox is responsible for most of the GUI's we see nowadays, and if anyone has a right to tabs or anything else in that area, they do, they did a hell of a lot of innovation. But the terms for patents in IT are far too long, and it is kinda unfair that Apple is singled out as well.

Re:Birth of GUI

This is complete bullshit, when Apple visited Xerox and got their inspiration, Xerox merely had a bunch of demos, not even a complete system yet (that came later). Things like doubleclicking, click and drag, pull-down menus, the desktop metaphor, copy and paste are all inventions that happened at Apple not at Xerox.

Xerox came up with an implementation of a new way to interface with computers, that had been talked about since quite a while, Apple made it into a usable system and came up with most of the way we interact with computers nowadays.

Re:Birth of GUI

Let me reprise a comment of mine from several months previous:

Ford didn't invent the assembly line. The Wright brothers didn't invent the airplane. Wanamaker didn't invent the department store. Edison didn't invent the light bulb.

All these people derived inspiration from their contemporaries. All they did was "steal" ideas from others and make them better.

Steve Jobs' saying, that "real artists ship," is right on the money. Production, after all, has a more lasting impact than theory and prototype.

The Apple Lisa had tabs!

Tabbed UI, Apple Lisa, circa 1980. Screenshots [folklore.org], story [folklore.org].

Re:The Apple Lisa had tabs!

Fortunately, you mean. Having a useless title bar consume one of the four extremely valuable screen edges and parking the menu under it is one of the most horrendously stupid violations of Fitts' law in the history of user interfaces.

Re:The Apple Lisa had tabs!

No, I mean unfortunately.

Fine, if you have only one window. In any case, if you do just use one window, you don't have to have the window border there.

Unfortunately, I use many windows, and when I use an Apple computer, I can have only one window visible, and still the menu is for the wrong application - not such a problem if I'm using a mouse and realise, but if I use keyboard accelerators, then I can get into all sorts of trouble before I realise it's not the correct application.

When it *is* the correct menu for the window I want, and I'm, say, using a window on the second monitor, I have to move the mouse all the way to the other monitor just to use the menu.

I used to use a computer with, IIRC, 18 monitors. I can't imagine what a pain in the rear end that would have been if it were running OSX.

It's oft claimed that it's easier to get to a menu when it's at the edge of the screen. That's true, though it is almost always further away (unless you only use one full screen window), and strangely enough, everything else on the screen requires precision mouse movements and because of that, I've become quite good at it - I don't need that kind of help, thanks!

It's brain dead, plain and simple.

(YMMV)

Re:The Apple Lisa had tabs!

I used to use a computer with, IIRC, 18 monitors. I can't imagine what a pain in the rear end that would have been if it were running OSX.

If they designed OS X around having 18 monitors available, the experience for the majority of users, who have onlye 1 monitor, would be a lot worse. Quite a few people do use 2 or even 3 though, so it's a valid criticism in those cases. IIRC, there are keyboard shortcuts to access the menu, so you could try those.