Here I will give my view on the potential infringement by Apple.

Before we talk any value or damages, we need to establish infringement, because it sets the scene for how you can calculate value. And you need to start answering the following questions;

• IS there infringement?

• WHAT is the infringing device?

So lets look at the infringement contention(s) stipulated in the filed complaint;

and for the sake of simplicity I start with 879 patent that (currently) survived IPR at PTAB.
The so called 879-patent (full number is US 8,095,879) has the following first claim;

1. A non-transitory computer readable medium storing a computer program with computer program code, which, when read by a mobile handheld computer unit, allows the computer to present a user interface for the mobile handheld computer unit, the user interface comprising:

a touch sensitive area in which a representation of a function is provided, wherein the representation consists of only one option for activating the function and wherein the function is activated by a multi-step operation comprising (i) an object touching the touch sensitive area at a location where the representation is provided and then (ii) the object gliding along the touch sensitive area away from the touched location, wherein the representation of the function is not relocated or duplicated during the gliding.

[bold and underline added by me to highlight what I see as crucial elements of this claim]
Notably, this patent does not cover the whole concept of touch screens, general touch screen interactions nor an actual touch screen as such. It covers one specific use of a touch screen.

For infringement to occur you need to fulfil every element of the claim (not only the underlined ones). If you miss out on any part of the claim, there is no infringement. You cannot partly infringe a patent claim. It’s binary.
This is also important to know when it comes to design around (a patent claim). Find an alternative solution for one step or element of the claim and you are safe.

Apple case

First contention; Direct Infringement – Control Bar
The representation (of a function) is there; the short horizontal bar at right top.
And the short bar only represents one thing; the availability of the control center.
Furthermore the horizontal bar does not move or replicates when swiping.
Only small question would be if touching occurs where the representation is located. However I believe also that is fulfilled.
Conclusion: Strong infringement contention. Likely to stick.

Second contention; Direct Infringement – Quick Path
This relates to the so called Swipe Typing.
Main concerns I identify for this infringement contention are the claim elements “representation of a function” and “representation consists of only one option“
One could argue that just the mere existence of a keyboard does not necessary represent availability of a swipe function. It could also represent “tap typing”.
In addition, if it (does) represent a swipe function, the next element “representation consists of only one option” could be a problem, sine you can also use the keyboard for “tap typing”. Hence the keyboard would then represent more than one option.
Conclusion: Not so strong infringement contention.

Third contention; Direct Infringement – Third Party Keyboard Applications
Neonode here involves third party apps/software, which makes the case weaker. First of all, you need to look at who actually performs direct infringement; Apple or the third party. Apple can just point to the developer and claim no responsibility.

This means that you need to investigate IPR rules for AppStore and possible indemnification clauses to see who will take the (IPR) responsibility for these applications.
Conclusion; Weak infringement contention. (somewhat vague with unclear responsible party)

Fourth contention; Indirect Infringement – Swipe Typing
First of all, indirect infringement is always harder to land. For that you first need to prove direct infringement (by a third party) and then argue for the defendant to be consciously inducing and encouraging infringement. I.e a long way to walk.
Conclusion: Weak, and probably not worth pushing hard for.

Summary Apple infringement
To me it seems as there is one clear infringement by Apple; the Control Bar
This will be the basis for damages/value in a future post.
The rest is week in my opinion.

I’ll deal with the Samsung case in next post.