By TODD BISHOP
SEATTLE POST-INTELLIGENCER REPORTER
Apple Computer's iconic iPod still has the huge advantage in the market -- but rival Microsoft suddenly has some bragging rights in the patent office.
Creating a surprise twist in the portable music wars, the U.S. Patent and Trademark Office has denied Apple's application to patent its method of using hierarchical menus to navigate through the iPod's contents.
The basis for the denial: A similar method outlined in a Microsoft researcher's patent application, filed after the iPod was introduced but before Apple sought its own patent.
"I'm sure there's a certain amount of glee among Microsoft executives," said analyst Michael Gartenberg, research director at Jupiter Research. The situation has to be "somewhat frustrating" for Apple executives, he said.
For now, the outcome is uncertain. Apple plans to appeal the ruling, and even if it's upheld, a Microsoft official pointed out that the two companies have a tradition of licensing patented technology to each other.
But analysts said the situation could prove troublesome to Apple. The company would no doubt prefer to avoid paying royalties to its rival, especially in a field Apple popularized.
"It's incredibly embarrassing," said industry analyst Rob Enderle. "That just makes it look like someone at Apple wasn't on the ball in terms of filing the patent at the right time."
But the practical implications may be less significant. Although the Apple patent application at issue focuses on the on-screen menu, many other factors -- including the device's distinctive click wheel and its general trendiness -- also have contributed to the iPod's success.
In a statement on the issue yesterday, Apple spokeswoman Natalie Kerris said the company "invented and publicly released the iPod interface before the Microsoft patent application" cited by the patent office in its ruling.
"Apple has received many patents for inventions related to iPod, and has many more patents pending," Kerris said. "The U.S. patent process is often a lengthy one, involving much back and forth with the U.S. patent office. Apple will continue to pursue this patent application, as well as the many others covering iPod innovations."
The initial rejection of Apple's patent, and the approval of Microsoft's patent, could make it possible for other device makers to more closely follow the on-screen design of the iPod in their own music players. Microsoft works with hardware companies, including Royal Philips Electronics, Samsung Electronics, iRiver and others who use its digital-music software.
Regardless of the outcome, Microsoft doesn't intend to try to block Apple from the market, said David Kaefer, business development director for Microsoft's intellectual property and licensing group.
"We have a long-standing practice of licensing things to Apple and licensing Apple's patents to use in our products," Kaefer said. "Our approach is to recognize that, frankly, we're both mutually dependent on the good ideas of one another."
Apple has ridden the popularity of the iPod to dominance in the digital music field, leaving Microsoft and its hardware partners struggling to catch up. And the stakes go beyond digital music. A Microsoft Windows executive, Will Poole, acknowledged last month that the popularity of the iPod is generating new interest among consumers in Apple's rival Macintosh computers.
The first iPod was introduced in 2001. Apple's patent application for the on-screen menu was filed a year later, in October 2002, according to patent records. The inventors listed on the application include Apple Chief Executive Steve Jobs.
In the meantime, in May 2002, John Platt, a Microsoft researcher, had filed his own application for "auto playlist generation with multiple seed songs." That application has received preliminary approval, pending the completion of final paperwork.
The patent examiner on the Apple case cited Platt's pending patent repeatedly in last month's written decision, saying it precluded approval of the Apple application. Patent language can often be interpreted in multiple ways, and Apple had disputed the examiner's view of the similarities between the applications. But he wrote that he disagreed with the company's analysis.
News of the Apple patent rejection first surfaced in an online report by AppleInsider.com earlier this week.
While it's possible that Apple could ultimately be required to license rights to Microsoft's patent, the issue isn't as clear cut as seeing which company filed its patent application first, said Rob Merges, a UC-Berkeley law professor who specializes in patent issues. What matters instead in the U.S. system is determining who came up with the idea first.
But even if Microsoft prevails in the patent process, it probably wouldn't be in the company's interests to hold Apple's feet to the fire, Merges said.
"If Microsoft plays hardball with this one, Apple may play hardball with the next one, and that's not a good thing" for Microsoft, he said.
The iPod accounts for 75 percent of all MP3 players sold in the United States, according to the NPD Group Inc. Apple has shipped 21.8 million iPods since Jobs introduced the player in October 2001, with 18.1 million units sold in the last four quarters alone.
Ultimately, if Microsoft is to prevail over the iPod in the digital-music market, it will have to work with its hardware partners to come out with more compelling devices, and to give a clearer message to consumers, Jupiter Research's Gartenberg said.
"Microsoft can declare this as somewhat of a minor victory," Gartenberg said. But "at the end of the day, it's going to take an awful lot more than this to unseat Apple from their position."
1. 從Microsoft的發言來看，這似乎是個擦槍走火的事件，並非微軟刻意的佈局，但是這不單事關ipod的專利金支付與否的問題，而且也影響到Apple已經建立了ipod的品牌王國的根基。
2. Apple應該是違反了non-obvious，申請的過程中，examer可能將Microsoft的patent視為prior art，而 i pod上的 click wheel與新穎的設計不足以構成non-obvious的要項。 Apple patent的構成由於寫的太貼近在"menu"上的設計，這與Microsoft的patent相似，因此被退件。 如果apple的patent重新強調新穎的設計，恐怕還是會落在Microsoft的陰影底下，畢竟這樣的寫法只會保護到"設計"的部分，"曲目選擇系統"恐怕還是侵權的。
3. 所以我很期待看到Apple的法務人員將會怎麼寫法，讓patent的claim能夠涵蓋到曲目系統的部分但是又不涉及侵權。若Apple要在Novelty上對Microsoft的專利上做超越，恐怕ipod會有截然不同的設計出現，屆時可能ipod又會出現升級版了。
Apple ipod的專利
Title：Graphical user interface and methods of use thereof in a multimedia player
Assignee Name and Adress: Apple Computer, Inc.
Inventors: Robbin, Jeffrey L.; (Los Altos, CA) ; Jobs, Steve; (Palo Alto, CA) ; Wasko, Timothy; (High River, CA)
Abstract：
In a portable multimedia device, a method, apparatus, and system for providing user supplied configuration data are described. In one embodiment, a hierarchically ordered graphical user interface are provided. A first order, or home, interface provides a highest order of user selectable items each of which, when selected, results in an automatic transition to a lower order user interface associated with the selected item. In one of the described embodiments, the lower order interface includes other user selectable items associated with the previously selected item from the higher order user interface.
專利連結：http://appft1.uspto.gov/netacgi/nph-Parser?Sect1=PTO2&Sect2=HITOFF&p=1&u=%2Fnetahtml%2FPTO%2Fsearch-bool.html&r=1&f=G&l=50&co1=AND&d=PG01&s1=%22Jobs%2C+Steve%22.IN.&OS=IN/
Microsoft的patent
（奇怪的是，這篇patent居然以個人名義申請，沒有以Microsoft為assignee做為申請人？這令我百思不解？）
Title：Auto playlist generation with multiple seed songs
Inventors：Platt, John C.; (Bellevue, WA)
Abstract：
The present invention relates to systems and/or methods that generate playlist(s) for a library or collection of media items via selecting a plurality of seed items, at least one of which is an undesirable seed item. Some of the seed items are desirable indicating that a user prefers additional media items similar to the desirable seed items and others are undesirable indicating that the user prefers additional media items dissimilar to the undesirable seed items. Additionally, the seed items can be weighted to establish a relative importance of the seed items. The invention compares media items in the collection with the seed items and determines which media items are added into the playlist by computation of similarity metrics or values. The playlist can be regenerated by adding desirable seed items to the playlist and removing media items from the playlist (e.g., undesirable seed items).
專利連結：http://appft1.uspto.gov/netacgi/nph-Parser?Sect1=PTO2&Sect2=HITOFF&p=1&u=%2Fnetahtml%2FPTO%2Fsearch-adv.html&r=1&f=G&l=50&d=PG01&S1=%28%22Auto+playlist%22.TTL.%29&OS=TTL/"Auto+playlist"&RS=TTL/"Auto+playlist"
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