Apple was recently awarded a patent related to multitouch input processing, which the Internet immediately characterized as a "key multitouch patent" that Apple could use to target Android handset makers. While the patent does describe a useful—and perhaps even important—part of Apple's multitouch technology, it certainly isn't a "thermonuclear" option that Apple could use to wipe out its smartphone competition.
Not that easy
Former Apple CEO Steve Jobs wasn't shy about telling the competition that the company had done its homework and filed over 200 patents on the technology used to build the iPhone during his January 2007 keynote address. Apple's most recently awarded patent, US Patent 8,085,247 "Advanced frequency calibration," was filed on January 3, 2007, just days before Jobs unveiled the iPhone publicly. And in the coming months, it's likely that Apple may be awarded more of these 200+ patents.
The patent in question discusses a method to automatically tune and calibrate the oscillators used in a capacitive touch interface. Will this patent finally give Apple what it needs to shut down Android for good? Not likely, according to the legal experts we consulted.
"Apple files tons of patents all the time, but this one appears to be almost comically narrow," Nilay Patel, a former IP attorney that currently writes about technology and law for The Verge, told Ars. In other words, the patent very narrowly describes a particular method for tuning the oscillator using a binary search-like algorithm.
We also spoke with Patrick Igoe, a patent attorney with degrees in software engineering, about the patent. "A competitor could arguably design around this particular patent by using an oscillator tuning technique that avoided the use of a binary search algorithm," Igoe explained. "I would therefore personally not call it a 'key' patent."
But the patent itself isn't necessarily key, regardless of how broad or narrow it is. Until the patent is tested in a court of law, there's no telling how important it might be to Apple's goals, and no single patent is likely to be the "smoking gun" that wipes Android off the market.
"We're going to continue to see a high drop-out rate among patents asserted in litigation," intellectual property analyst Florian Müller told Ars. "Some aren't valid, and many of the valid ones aren't infringed. Those that are valid and infringed will be worked around almost 100 percent of the time."
Death by a thousand paper cuts?
Of course, Apple would maintain that it doesn't necessarily need or want a "smoking gun" to keep all competitors out of the market; it just wants to keep the competition from ripping off its designs.
"We think competition is good. It makes us all better. And we are ready to suit up and go against anyone," then-COO Tim Cook told analysts in 2009. "However, we will not stand for having our IP ripped off, and we'll use whatever weapons that we have at our disposal."
Before his death in October, Jobs also made it quite clear that he would be willing to use Apple's vast resources to "destroy Android, because it's a stolen product," as he told biographer Walter Issacson.
Apple has already filed numerous lawsuits, in the US and globally, targeting top three Android handset makers HTC, Motorola, and Samsung. And in them, Apple has used a variety of patents, from old operating system-related patents, to "slide to unlock" and even design patents, in its lawsuits. While it would have been faster and easier for Apple to have simply collected preliminary injunctions in important jurisdictions, the results have so far been mixed. Some injunctions were overturned on appeal, while others have had fairly easy workarounds.
Some experts think that Apple should give up and settle the patent disputes. Instead of trying to keep Android at bay, they believe Apple should use its patent portfolio to make license agreements with handset makers, generating perhaps as much as $10 per handset in royalties.
"A scorched-earth strategy is bad news because it doesn’t optimize the value of their patents—because people will get around them," Kevin Rivette, a managing partner at intellectual property consulting firm 3LP Advisors LLC, told Bloomberg. "It's like a dam. Using their patents to keep rivals out of the market is like putting rocks in a stream. The stream is going to find a way around. Wouldn't it be better to direct where the water goes?"
But Apple commands a large percentage of smartphone profits and holds roughly $60 billion in the bank; it doesn't need the money. The company can afford to keep filing lawsuits as the Patent Office grants its pending applications.
While other companies, such as Microsoft, have leveraged their portfolios to generate licensing income, Apple has largely used it patents in an attempt to maintain its competitive edge. Even if it doesn't have one multitouch smartphone patent to rule them all, it has hundreds of patents it can use to keep HTC, Samsung, and Motorola entrenched in legal disputes for the next few years. That itself might be enough for Apple to maintain its edge in the growing smartphone market.
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