Apple Inc, proud manufacturers of the Mac and the iPhone, were granted a computer-implemented method patent on January 20th for ‘[a method] of detecting one or more finger contacts with the touch screen display, applying one or more heuristics to the one or more finger contacts to determine a command for the device, and processing the command’. This patent has attracted much attention, as does all information that emanates from Apple, one of technology’s most fetishised brands. This particular snippet has generated even more buzz than usual, however, as it has been interpreted as relating to some feisty comments made by Apple’s Chief Operating Officer Tim Cook during a conference call with Wall Street analysts the day after the patent was granted. Asked about how Apple intended to continue to succeed in the smartphone arena, particularly when other products like the as-yet-unreleased Palm Pre seem to be aping the iPhone’s functionality closely, Cook replied:
“We like competition, as long as they don’t rip off our IP… I don’t want to talk about any particular company. However, we will not stand for having our IP ripped off. And we will use whatever weapons we have at our disposal.”
Palm’s Pre had been receiving extremely positive press attention after being shown off at the Consumer Electronics Show 2009 in early January. Like the iPhone, the Pre features a large touchscreen interface that responds to taps and gestures from one or more fingers. Many commentators remarked on how like the iPhone Palm’s new product was, hence the analyst’s question to Cook.
Now both the Palm Pre and the Apple iPhone are driven largely by closed source software, so how does this all relate to open source? Well up until now the most prominent ‘feature competitor’ to Apple’s iPhone was the G1, a touchscreen phone developed for network provider T-Mobile by Taiwan’s HTC (an acronym, charmingly, for High Tech Corporation). The G1 was notable not only because it was the first iPhone-a-like to market, but also because it was the first phone to run Google’s Linux-based open source smartphone operating system Android. The G1 also sports a touchscreen of almost identical specification to the screen used in the iPhone, including the ability to detect and track contact from more than one finger simultaneously. However Android itself is not capable of tracking multiple simultaneous touches, and so for example relies on visual ‘+’ and ‘-‘ buttons to enable zooming into an image or web page, as opposed to the iPhone’s intuitive ‘pinch’ and ‘de-pinch’ gestures.
Now as Android is open source, it did not take long for enthusiastic users to track down why the operating system did not make information about the location of additional simultaneous touches available for applications to use, thus enabling sexy iPhone like gestures. Apparently the relevant code in the touchscreen driver (software which acts as the intermediary between the touchscreen hardware and the phone’s main processor) had been purposefully ‘commented out’ or rendered inoperative. While many in the Android community remain hopeful that their G1’s – or possibly some successor Android phone – will one day feature multi-touch gestures, it seems likely that Google has deliberately suppressed this functionality for fear that Apple lawyers might demand royalties or cessation of distribution over infringement of their multitouch patent.
Surely, you might think, Google are a big enough corporation to be able to afford to license Apple’s patent? They are indeed. However, licensing a patent for incorporation into a piece of open source software means opening oneself up to entirely unquantifiable costs. The Apache Software License 2.0 under which Google’s portion of the Android platform is distributed, has this to say about any patents that might be embodied in the software it covers:
“3. Grant of Patent License. Subject to the terms and conditions of this License, each Contributor hereby grants to You a perpetual, worldwide, non-exclusive, no-charge, royalty-free, irrevocable (except as stated in this section) patent license to make, have made, use, offer to sell, sell, import, and otherwise transfer the Work, where such license applies only to those patent claims licensable by such Contributor that are necessarily infringed by their Contribution(s) alone or by combination of their Contribution(s) with the Work to which such Contribution(s) was submitted…“
Google sees Android as an open platform on which to deliver their services, and therefore wants as many handset manufacturers as possible to build devices that run it. In order to license the multitouch patent from Apple for use in Android, Google would have to commit to paying the patent licensing fees for an unknowable number of potential devices from manufacturers all over the globe. Even if Apple were prepared to license their patent on such a basis, it would be an immensely risky financial commitment for Google. For the moment, it seems that T-Mobile, HTC and Google are happy to wait for someone else to test Apple’s resolve and the robustness of their patents.
Of course, individual device manufacturers are at liberty to license patents just for use on their phones, and this may indeed happen with Android devices in the future. The problem with this approach is that, while it gives a valuable selling point to the manufacturer in question, it results in a fragmented platform, with application developers having to decide whether to adapt their programs to take advantage of manufacturer x’s special multouch Android phone, or just stick with implementing functionality that is present on the majority of standard Android phones. In the same way, Palm may choose to license Apple’s patent for the Pre, or they may take the other popular approach to patent disputes between high-tech companies – threaten back. Palm has a long history in mobile computing and it is quite possible that, if motivated to look, they could find patents in their own portfolio that are implemented in Apple’s devices, and thereby force some kind of mutual accommodation.
None of this will help free and open source implementations of multi-touch patents, however. For these to truly flourish, it will be necessary for the patent (and many others that exist) to be invalidated. This could happen if it is re-examined and found to be an obvious progression of previous technologies, or perhaps if it is shown that the idea was published before the patent was applied for. It may even happen that the recent infamous US Federal Circuit decision in re Bilski (as discussed in this blog previously) will make technology firms less willing to litigate expensively in support of computer-implemented method patents such as this one. Either way, it seems it will be a while before our open source programs will understand what we mean when we pinch them.