Yes, that can be a defense raised in litigation. It’s the equitable principle of “laches.” Generally, the presumption of laches arises when more than 6 years has passed from the time the patent owner knew of the infringement and the time he/she filed suit.
I agree it’s clever. I hate it when I have to tap a refresh icon. Pull-to-refresh seems more natural.
It’s worth noting that Apple had very broad disclosure and coverage of this type of feature in it’s “bounce-back” patent applications (going back to 2007), but missed the mark by not mentioning that the method could be used to refresh. Everything was there except for that important detail. There’s a patent attorney and engineer somewhere in Cupertino experiencing some regret.