Apple spent a lot of 2011 in court (either directly, or in disguise), attempting to keep competitors’ smartphones and tablets off the market. If patent #8,082,523 is any indication, 2012 will be even worse. You don't have to interpret the wording of this patent too loosely to conclude that any multitasking smartphone owes Apple. In fact, the abstract could almost serve as a Wikipedia entry for “Smartphone”: “A portable electronic device displays, on a touch screen display, a user interface for a phone application during a phone call. In response to detecting activation of a menu icon or menu button, the UI for the phone application is replaced with a menu of application icons, while maintaining the phone call. In response to detecting a finger gesture on a non-telephone service application icon, displaying a user interface for the non-telephone service application while continuing to maintain the phone call, the UI for the non-telephone service application including a switch application icon that is not displayed in the UI when there is no ongoing phone call. In response to detecting a finger gesture on the switch application icon, replacing display of the UI for the non-telephone service application with a respective UI for the phone application while continuing to maintain the phone call.”
One could make the argument that a portable device with touchscreen control of a phone + app interface was, at some point, a non-obvious invention -- and therefore worthy of a patent. It goes without saying that such a point was well before December of 2011, when the patent was granted. Even the filing date of June 2007 seems laughably late in the game -- especially if you’re old enough to recall 1992, when the IBM Simon made its debut, or the many products that refined the smartphone paradigm over the following fifteen years. Still, the wording also includes the “finger gesture” and “switch application icon” elements, which might just be enough to distinguish the original iPhone from its competitors. Obviously, the USPTO thinks so.
Apple spent a considerable amount of research and development to bring the first iPhone to market; I’d be the last to say that the company doesn’t deserve to receive rewards commensurate with its innovation. But haven’t they? After all, the iPhone is both iconic in its own right and has become virtually synonymous with this era of portable mobile devices. Every phone released in the past five years has been measured against the iPhone (and more often than not, found wanting). Apple’s bottom line is, by all accounts, enjoying the fruits of this success -- already satisfying one of the evidence-based “Graham Factors” commonly used to determine non-obviousness. Is there any need, then, to grant Apple this broader license to sue manufacturers -- not simply over “slavishly copied” designs, but over virtually any phone that makes use of a touchscreen-controlled ‘switchable phone/app icon’?
To escape infringement claims, nearly all smartphone hardware and OS designs would have to be significantly re-worked -- the modern-day equivalent of (for example) trying to design a car without putting the gas cap on the exterior. It can be done, of course, but at what level of specificity does invention and unique ownership become ludicrous?
A more interesting question might be whether Apple truly feels that this patent could be defended. Any number of companies pursue a strategy of “over-patenting," which is quite simply seeking as many patents as possible with the knowledge that only a minority percentage would ultimately be defensible in the courtroom. Merely having the patent confers a distinct advantage. A company could, for instance, secure licenses from others who would rather pay a ‘settlement sum’ than drain their resources in an attempt to have even a clearly shaky patent declared invalid. Consider how disastrous such a challenge could be if a company banked on a single product line, only to see it paralyzed into obsolescence by import bans (a less-diversified Samsung, for example).
The "finger gesture" and "switch application icon" wording makes Apple's patent just non-obvious enough, at least at the time of filing. The success of the initial device that utilized this patent is support for a level of innovation (although arguably not as any result of this specific feature).
The feature could never be considered non-obvious by the date that the patent was approved. Actually asserting this would cause considerable waste of resources including legal for all parties, and hardware and software R&D for competitors. Apple is seeking not to protect its innovation, but to leverage a potentially insurmountable market lead against coercive licensing revenue.