Does Apple Really Own Multitouch?

The Macintosh turned 25 years old this past weekend, and Apple seems to be celebrating the occasion by unleashing its blood-lusting attorneys on Palm in a potential patent infringement suit.

The Macintosh turned 25 years old this past weekend, and Apple [AAPL] seems to be celebrating the occasion by unleashing its blood-lusting attorneys on Palm [PALM] in a potential patent infringement suit.

The intellectual property in question is Apple's multitouch software, which enables iPhone and iPod Touch users to interact with their devices using more than one finger; it's the technology that allows that nifty zoom-in, zoom-out pinching gesture. Palm's new Pre sports similar functionality, complete with pinching.

Jonathan Ive, Apple

While the lawsuit hasn't been filed yet, Apple COO Tim Cook made statements during his discussion of the company's financial earnings report that made legal action sound all but imminent. When asked about competition from other smartphone-makers, Cook said, "We like competition. As long as they don't rip off our intellectual property. And if they do, we're going to go after anybody that does."

While he didn't name Palm as the specific aggressor, industry reporters connected the dots. Cook then said he'd be willing to use Apple's entire legal arsenal to pursue the charge, adding, "I don't know that I can be any more clear than that!"

But Palm isn't the only platform seeking to democratize multi-touch. A savvy Google [GOOG] Android user has hacked his G1 phone to use multi-touch too, albeit with a lot of tinkering. After inserting a new string of code into the kernel of his G1, he was able to get two-fingered zooming up and running as a kind of proof-of-concept. He admits it needs optimizing, but the potential for fluid multi-touch on Android is clearly present.

So if Apple has a patent on this functionality, are Palm and the G1 hacker walking straight into a legal bear-trap? Actually, no. They probably know that Apple and its legal team will have dubious legal grounds for prosecution. Thanks to a recent federal circuit court case discrediting the patentability of financial products, all "business method" patents have been rendered largely indefensible. Such patents consist of any non-hardware-based intellectual property; that rubric includes formulas, language, and yes, software. Since the actual touchscreen — the hardware itself — the iPhone and iPod use to enable multitouch is a commodity, salable to any smartphone maker, they'll have a tough time proving they're the only ones that should be able to write multitouch software for it.

Of course, Apple could stand to lose the multitouch battle and do just fine. With new, promising software being developed by third parties all the time, the iPhone and iPod will retain an edge over Palm's late-to-the-game Pre for quite some time. Take for example the new VOIP application that is rumored to be released for iPhone and iPod on the iTunes Store come February 1st.

The WiFi-enabled app, called De-Fi, will allow users to pay a flat fee to talk anywhere in the world over Wi-Fi, eschewing exorbitant global roaming charges. (Talking to users on Skype or GoogleTalk will be free.) The subscription-based service will also assign up to three international numbers to each iPhone or iPod, allowing business users to provide their overseas contacts with local numbers.

Until the rumored announcement of De-Fi, world travelers with iPhones were stuck with massive roaming bills. Since the iPhone is a locked device, users can't pop in a prepaid overseas SIM card to save money. And since the iPhone is constantly checking in with its towers, it liberally uses its data access and voice minutes without notifying the user. If software can be a write-around to shortcomings in hardware, shouldn't those write-arounds take place on a level playing field? Toss a cool app like that on the growing pile of must-have iPhone software, and Apple doesn't need to be litigious to be on top.

Sadly for Palm, it doesn't have to lose a suit against Apple to be in deep trouble; the Cupertino-based technology company could easily bleed the little company dry by attrition, dragging out legal action and costing both companies millions. As Reuters reported today, recession is finally hitting Silicon Valley hard, causing thousands of layoffs and waves of renewed caution. This is not the time for Palm to fight one of the best-capitalized companies in the sector.

Coincidentally, Apple's fearsome reputation for innovation is the subject of a new documentary to be screened at the South by Southwest film festival in March. Objectified will take viewers into areas of Apple's design studio—normally off limits even to most Apple employees—to inspect the company's prototyping equipment and talk with head designer Jonathan Ive. It's made by the same documentarian who created Helvetica, a short history of that inescapable typeface.

Poor software guys; the industrial designers always get all the love.

EDIT: Today Physorg.com is reporting that Apple has officially been awarded the multitouch patent. Patent number 7,479,949 awards Apple ownership of software capable of "detecting one or more finger contacts with the touch screen display" to computing devices.

However, the official patent won't improve Apple's odds at defending multi-touch. Since patents take often take years to process, this patent application (and its decision) clearly pre-date the Bilski decision. Like all other business method patents that predate Bilski, it will remain valid until challenged in court. At that point, it'll be virtually indefensible.

[Photo credit: iPhone Pinch, PCMAG.com; Objectified Screenshot, Gary Hustwit]

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3 Comments

  • Chris Dannen

    Especially when Cook says he'll "go after" anyone that steals their IP, and adds, "I don't know that I can be any more clear than that!"

  • NoahRobischon

    @mathue: The Palm Pre was the most talked-about gadget of CES. Having the latest and greatest cellphone is de rigueur nowadays, which means the Pre could represent a real threat to iPhone. I don't think it's connecting too many dots to say that Apple might want to stave off that threat by legal means. They've done so in the past, certainly.

  • mathue taxion

    "While the lawsuit hasn't been filed yet"

    "celebrating the occasion by unleashing its blood-lusting attorneys on Palm"

    I realize that this is FastCompany and also a BLOG but aren't the first few paragraphs connecting a few too many dots? You computer geeks REALLY need to get out more and socialize. Having owned two Treos a IIIc, 5x and an m515 and now having gone to a Blackberry I see no reason to return to Palm. If Apple has kicked Palm back into gear, I say that's great. Frankly, ragging on the iPhone for its success seems rather disingenuous. This peculiar form of Schadenfreude is so common on the net.