When there is significant prior art a patent is not supposed to be granted for a technology. The concept and legalities of prior art was supposed to be upheld by the patent office, but the USPTO seems to ignore them in many cases… especially if Apple is involved. The latest instance of this is Apple’s 8,600,120 patent titled “Personal computing device control using face detection and recognition”.

The details of the patent (if you care to read them) will sound very familiar. Apple is trying to patent a facial recognition system to allow you to unlock your locked phone. They are also applying an additional security layer that allows you to apply different permissions based on the face. You can also control a limited number of apps on the device. The patent was filed for recently using a reference to a patent application filed in 2008 (to make it look like it was filed earlier). It was not granted until December 3rd 2013. By contrast Google filed for patent number 8,396,265 (titled “facial recognition”) in June of 2012 (with no reference) and had it granted in March 12 2013. The technology covered in the patent was first released to the world in October 2011. After the launch of face unlock launch Apple tried to file a patent for a similar technology, but were not granted the patent. Google filed for the patent to cover themselves legally shortly after this incident.

Getting back to Apple’s patent and the prior art term. Due to Apple’s penchant for secrecy and the fact that they did not release any information (or products) based on the technology the 8,600,120 patent should not have been granted. It overlaps a patent that has already been granted and that is already in production. Apple knew that this was the case when they continued to push the patent through the USPTO. Where the USPTO failed was to decipher the claims in Apple’s patent and see that they are almost identical to what is already claimed in Google’s patent:

Google’s 8,396,265 Patent claims:
“A method comprising: capturing, by an image capture device coupled to a computing device, an image of a face of a user; detecting, by the computing device, whether a distance between the image capture device and an object represented by at least a portion of the image is less than a threshold distance; and when the detected distance is less than the threshold distance, denying authentication of the user with respect to accessing one or more functionalities controlled by the computing device, wherein the authentication is denied independent of performing facial recognition based at least in part on the captured image. “

While Apple’s 8,600,120 lays claim to:
“An electronic device comprising: an imaging unit for acquiring at least one image; a receiver for receiving at least one incoming communication from a remote source; and a processor for: analyzing the acquired at least one image to detect a face in response to the receiving the at least one incoming communication and not in response to the electronic device receiving an active user interaction from a user of the electronic device; in response to the analyzing, determining whether the face is detected; in response to a determination that the face is detected, performing a first action corresponding to the received at least one incoming communication; and in response to a determination that the face is not detected, performing a second action corresponding to the received at least one incoming communication.”

The important parts of these are the claims to a device that is capable of capturing an image. Google’s says: "capturing, by an image capture device coupled to a computing device” Apple says: “An electronic device comprising: an imaging unit for acquiring at least one image”.  It is the same thing worded differently and Apple decided to use a legal trick to make the filing appear earlier than it actually was (they also appear to have made some wording changes. It would seem pretty clear that Apple filed this not to protect any technology they employ or plan to use, but as a further weapon to fight Google.

Sadly the current US Patent system does not have any provisions to cover patents that are not intended for manufacture. The system has been corrupted by continued lobbying from corporations that want to make it easier to build their portfolios as a weapon and not as a means of protecting innovation. They all will still claim that is what they are doing, but the lie is becoming easier to spot. The new mantra is: “if you cannot innovate, litigate.” No one is better at this than Apple, they have a history of litigation that goes back to the Windows 3.1 era and almost bankrupted them (and is hurting them now as well). Meanwhile the market suffers as competitors are blocked from a market over a tiny percentage of what a device does in rulings by judges that do not understand the technology they are working with.

The patent system is broken and in its current state does nothing but harm. It hurts the market, the consumer and slows innovation in measurable ways. It allows for patent troll companies that make nothing, but sit on patents they bought from different places. It allows groups of companies to own patents together and go after another company to block sales and products… It is a joke and no longer valid. Too bad it is exactly where companies like Apple, Microsoft and others want it…

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