Apple's touch-screen patent

In March, 1988, Apple filed suit against Microsoft and HP, claiming that their new window-oriented interfaces violated Apple's copyrights on the Macintosh GUI. This suit drew widespread condemnation on the net and a boycott compaign by the Free Software Foundation, which refused to incorporate Macintosh support into its software for years. Apple eventually lost, but, in the process, it cast a cloud of uncertainty over graphical interfaces for some years.

More recently, Apple Chief Operating Officer Tim Cook was quoted in this way:

The saber which Apple is rattling here is widely thought to be patent #7,479,949, often referred to as "the multitouch patent." Multitouch interfaces are those which can respond to simultaneous operation of two or more pointing devices. These "devices" are normally fingers on a touch screen, but it need not be that way. Apple's iPhone and iPod Touch devices have made multitouch a core component of the interface, as typified by the "pinch" gesture used to change the zoom of the object displayed on the screen. At this particular time, multitouch typifies Apple devices in much the same way that a well-developed windows-icons-menus-pointer interface did in the late 1980's.

Incorporation of multitouch techniques into other products seems like it is only a matter of time - and not very much time at that. The upcoming Palm Pre device is one obvious example. The Android developers have also clearly been thinking about multitouch; current releases do not support it, but it turns out that the G1 hardware supports multitouch, much to the joy of the G1 hacking community. Whether that capability will ever be exploited by official Android releases remains to be seen, though. Google is clearly concerned about the issue, and developers have been asked not to discuss the patent on the Android lists.

Whenever one deals in patents, one must look at what has actually been claimed. The first claim for Apple's patent is illustrative (if painful):

Note that this claim does not address multitouch techniques at all. Some of the dependent claims do mention it, but in the specific context of using a two-thumb gesture to change the orientation of a web browser display. The iconic "pinch" technique does not appear anywhere in the claims for this patent, though it is mentioned several times in the descriptive text. Your editor is far, far removed from being a patent attorney, but he has a hard time seeing how this patent could be read against most multitouch techniques.

What does appear in this patent is a heuristic for suppressing horizontal scrolling if the user makes a sufficiently steep gesture on the touchscreen. This sort of heuristic can certainly be found in the Android interface, which does just that kind of vertical-only scrolling. In your editors (again, unqualified) reading, the scrolling claims present much more potential for trouble than multitouch.

If Apple were to prevail with claims based on this patent, the effects could be severe - at least, in the United States. Devices made by companies other than Apple could lose a number of important techniques which make touchscreen-based interfaces usable. Companies like Palm could conceivably license the patent from Apple (if Apple were willing), but that is almost certainly not an option for toolkits (like Android) which are based on free software. Linux World Domination for mobile devices could well suffer a major setback.

Arguably, this patent would have no effect on business conducted outside of the US. Fully-capable devices could be sold elsewhere, as long as they are developed entirely outside of the United States. American users could be stuck with iPhones or devices with inferior interfaces - with the lucky few carrying devices furtively imported from elsewhere. In practice, excluding the US would make it harder for any such product to succeed. And US-based platforms, including Android and Palm webOS, would be out of luck.

It may not come to that, though. Perhaps Apple does not intend to use its patents as an offensive weapon. After all, the company has done well enough by focusing on building great products, and the look-and-feel lawsuits of the 1980's did little to help Apple succeed. A new round of litigation would risk alienating developers worldwide and distracting Apple from the activities which truly benefit the company.

If Apple does take the offensive, it faces a couple of severe obstacles. One is the slowly-changing attitude in the US, where legislators and judges are (belatedly) figuring out that the patent system is out of control. The bar has been raised (though not by enough), making patent enforcement more difficult than it once was. Beyond that, there is also the issue of prior art. The best reference there would appear to be this extensive history of touch-based interfaces put together by Bill Buxton at Microsoft Research. Suffice to say that, as in most other areas of endeavor, there is little that is truly new with touchscreen interfaces.

(As an aside, it's also worth noting that Microsoft, by virtue of its own interest in mobile devices, could become an unlikely ally of the free software community in this particular battle, should it come to be fought.)

All of that will be little comfort, though, to anybody working with touchscreen-based products in the US now. Even if a company sued by Apple were to emerge victorious, that victory would come at the cost of millions of dollars spent, much time lost, and much uncertainty sown among others who are thinking about developing for that company's platform. So, for now, the patent system continues to inhibit the innovation that it was created to encourage.