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Here we'll explore the nexus of legal rulings, Capitol Hill policy-making, technical standards development, and technological innovation that creates -- and will recreate -- the networked world as we know it. Among the topics we'll touch on: intellectual property conflicts, technical architecture and innovation, the evolution of copyright, private vs. public interests in Net policy-making, lobbying and the law, and more.

Disclaimer: the opinions expressed in this weblog are those of the authors and not of their respective institutions.

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In the Pipeline: Don't miss Derek Lowe's excellent commentary on drug discovery and the pharma industry in general at In the Pipeline

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March 15, 2012

What If There Was A Tablet Before Apple's?

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Posted by Alan Wexelblat

To follow on to the Yahoo/Facebook patent kerfuffle I thought it worth revisiting the Apple-versus-the-world lawsuits over tablet devices in particular. We've talked about how Apple is starting to win cases on patents that look strong. We've talked about how Samsung is working to show that important concepts of the tablet computer were already in the public sphere prior to the filing of some Apple patents.

This is sort of the canonical prior art: if you can show that an invention from a patent was in fact already known publicly then the patent can't stand. You can still patent new inventions related to the idea - for example, Apple's patent on providing word-by-word suggestions for auto-completion as users type is unlikely to be invalidated simply because someone described the general form and function of a tablet computer in 1994.

Yes, 1994. According to this nice summary piece by Michael Rosenwald in the Washington Post, that's when Roger Fidler put out a visionary video describing "a whole new class of computer". This video was actually a follow-up to a 1981 paper in which he described a machine with "tactile controls". In his vision the new class of computer would be thin, portable, lightweight, rectangular. You would do things like "press on a headline" to retrieve a full news story; at the time he worked for Knight-Ridder, a company which must now be kicking itself for its unwillingness to file patents based on Fidler's far-out ideas.

Still, Fidler's writings, videos, and demonstrations were public; the fact that they weren't patented doesn't lessen their potential value as relevant prior art. There's some chance as Rosenwald describes it that a good lawyer could show how Apple people were exposed to and potentially influenced by these ideas. Apple probably would still maintain the majority of its patent position even if certain design and foundational patents were invalidated, but its position would be significantly weaker. That may be why rumors are starting to float that Apple may want to settle. A settlement would foreclose the possibility of the patent portfolio being weakened and could leave Apple in a strategically stronger position than another partial win a full-length court case.

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