Will Apple's Patent Victory Create A Usability Hell?

We talk to an IP lawyer about whether Apple really can own a gesture that now seems foundational.

Pinching to zoom on touch-screen devices is such a common gesture today that it’s hard to believe Steve Jobs wowed audience members (who actually cheered and applauded for close to 20 seconds) when he first stretched his fingers against the iPhone’s glass face. Now, the interaction is used by nearly all device makers in electronics ranging from smartphones to tablets to laptop trackpads, a universal gesture for magnifying photos, maps, and webpages.

But the ubiquity of that hand gesture could soon go the way of the Macarena. In Apple’s $1 billion patent lawsuit against Samsung, which the company won last week, a jury decided that a slew of Samsung’s mobile devices had violated a number of Apple’s utility patents for interaction designs, including some that relate to distinctions between one-finger scrolling and two finger gestures that could include pinch-to-zoom. In an industry already wary of patent litigation, the verdict could lead to significant fragmentation in the user experiences created by tech companies eager to avoid the wrath of Apple’s rabid legal squad.

"With regard to gestures, I think it will be hard to change the status quo because they’ve already gained such widespread acceptance," says one top interaction designer at HP. "Ultimately, I’m worried it would hurt the end user—it concerns me that you could have these inconsistencies in terms of user experience as you go from different product to product."

As my colleague Kyle Vanhemert outlined Monday, without usability standards, the consumer experience suffers. The pinch-to-zoom gesture, for example, is part of an intuitive, cross-platform interaction language, but companies might look at the Samsung verdict and hesitate to mimic the experience, even though the Apple v. Samsung case didn’t hinge on pinch-to-zoom specifically. The jury also found Samsung had violated other Apple utility patents, for example, including patents for its tap-to-zoom gesture and rubberbanding technology. "It’s very much possible that pinch-to-zoom is the best way of zooming in on a map," Vanhemert wrote. "Forcing smartphone developers to come up with a different way of doing things for the sake of coming up with a different way of doing things is outrageously stupid."

But Christopher Carani, an IP lawyer with McAndrews, Held & Malloy, Ltd. and the former chair of the Industrial Designs Committee at the American Intellectual Property Law Association, questions whether it will ever get to that point. Carani explains that we shouldn’t think of the jury’s verdict like a binding Supreme Court decision. "This is a district court decision—it doesn’t have some sort of precedential effect from one court to the next, or one country to the next," he says. "So before it all gets gloom and doom, which is basically what I’ve read so far, with respect to these types of functional utility patents, it’s critical not to paint with a broad brush and say this is just any type of pinch-to-zoom or tap-to-zoom function."

Rather, he continues, "In these types of situations, you’re not actually patenting the exact concept, but with something like pinch-to-zoom, you have to drill down the specific language of the patent claim itself, so there might be some actual command that has to be used or some underlying instructions that are covered. By now Samsung’s attorneys have studied this thing inside and out; they know the prior art; they know the scope of the claim; and they’re going to be counseling their clients to try and find a way to design a workaround." Canari cites his own BlackBerry phone, for example, which has pinch-to-zoom functionality. "But I don’t know," he adds with a laugh, "Perhaps Apple will go after [RIM] next."

Arguably, Apple doesn’t even have to. James Schauer, who spent several years at RIM before becoming CEO of Harmonic Interactive Research and Design, which develops gesture-recognition technology, saw firsthand the impact potential litigation can have on product experience. "I can assure you there was a chilling effect on innovation and design at RIM. One of the reasons RIM didn’t do any [rubberbanding-like] bounce back was because of Apple’s patents," Schauer says. "They took a very conservative approach—anywhere we could possibly face litigation was looked at with extraordinary scrutiny. Arguably that became the straw that broke the camel’s back at RIM. When the lawyers are in charge, that’s game over."

Still, Schauer believes the jury made the right decision in the Samsung-Apple patent lawsuit. "We were pretty upset when we saw Android came out—we knew they hacked all over Apple’s patents, and we were like, 'This is not fair,'" he says. "I think the jury made the right ruling, but I think the real question is: Should pinch-to-zoom be patentable?"

Many share his concerns. Slate said Apple’s new "pinch-to-zoom monopoly is bad news." The New York Times reported that some designers are concerned the patent case’s outcome could lead to unnecessarily differentiated user experiences, akin to being forced to create triangular steering wheels for cars because of patent concerns, despite rounded wheels being the universal standard.

Triangular steering wheels? "I think that’s a healthy dose of hyperbole," Canari says.

[Image: ivelly/Shutterstock]