Philipp Ess October 12 2015 Apple's 'slide-to-unlock' patent invalidated in Germany Klinkert Rechtsanwälte PartGmbB | Intellectual Property - Germany Philipp Ess Intellectual Property FactsDecisionCommentThe Federal Court of Justice recently affirmed the Federal Patent Court's 2013 decision to declare Apple's notorious 'slide-to-unlock' patent invalid.FactsIn the course of the worldwide patent battles between Apple and competitors such as Samsung and Motorola, Motorola filed an invalidation action for the German part of Apple's European Patent EP1964022.The patent relates to a method of unlocking a device by swiping on an 'unlock' image. According to the patent, the object of the invention was to solve one of the problems associated with using touch screens on portable devices – namely, the unintentional activation or deactivation of functions due to unintentional contact with the touch screen. The patent states that a need existed for more efficient, user-friendly procedures for unlocking such devices, touch screens and applications. According to the patent, this problem was solved by swiping the user's finger on the screen along a predetermined path (aided by graphical assistance, the typical 'Apple arrow').DecisionThe Federal Court of Justice held that the subject matter of the patent was not patentable because it did not involve an 'inventive step'. An invention is considered to involve an 'inventive step' if it is not obvious for a person skilled in the art to reach the same solution when presented with the prior art.Motorola proved that the mobile phone Neonode N1 featured a graphical representation requiring a swiping movement on a touch screen to initiate the unlocking process before the priority date of Apple's patent. While the Neonode N1 unlocking screen did not include graphical assistance for the user's finger movement across the screen, the court held that the mere graphical assistance for the finger movement would be obvious to a person skilled in the art. Hence, the patent was not based on an inventive step.CommentThis decision's practical impact on Apple's business will probably be minor, since most (if not all) of its competitors have developed unlocking screens designed around Apple's patent. The ruling is also unsurprising, since the European patent has already been invalidated in several countries.However, the decision is a further step towards legal certainty regarding the patentability of computer-implemented inventions. In 2010 the Federal Court of Justice clarified that the subject of a patent application for a computer-implemented invention must:be technical in itself; andsolve a technical problem.The Federal Patent court held that the 'slide to unlock' feature was not technical in itself since it related only to an optical feedback. However, despite the fact that it ultimately denied patentability for lack of inventive step, the Federal Court of Justice took a more liberal approach regarding the technicality requirement. In this respect, it upheld the approach taken in several past decisions. Computer-implemented inventions are therefore in principle patentable in Germany, even if the subject matter of such invention is mostly optical, provided that the invention is novel and comprises an inventive step.For further information on this topic please contact Philipp Ess at Klinkert Rechtsanwälte PartGmbB by telephone (+49 69 972 65 600), fax (+49 69 972 65 6099) or email ([email protected]). The Klinkert Rechtsanwälte website can be accessed at www.klinkert.pro.