Bloomberg's patent expert Susan Decker went to today's beginning of the hearing in ITC investigation no. 337-TA-710 (Apple vs. HTC and, concerning one of the patents, Nokia) and found out that the Office of Unfair Import Investigations (OUII), an ITC department that acts on behalf of the public as a third party in most ITC cases, believes HTC and Nokia "shouldn't be found liable of infringing [Apple]'s [asserted] patents."
Let me put this into perspective:
The staff opinion is not a decision. It's a recommendation that bears some weight -- nothing more, nothing less. I already explained this in November when it became known that the ITC staff also issued a negative recommendation concerning four patents Apple asserted against Nokia (and not simultaneously against HTC).
Generally speaking, ITC investigations are sometimes like roller coaster rides. The staff opinion isn't binding on the administrative law judge (ALJ) to whom a case is assigned, and the ALJ's "final initial determination" can be reviewed and overturned by the Commission, i.e., the six officials at the top of the ITC. I explained this recently (after an ALJ issued a final initial determination against Nokia's claims against Apple, and after the Commission decided to review a final initial determination against Kodak's claims against Apple and RIM).
Even though nothing is final until the Commission decides, there's a consistent pattern so far in Apple's disputes with Nokia and HTC: at this stage, none of the complaints is on the winning track. This may make other smartphone players think twice before filing ITC complaints. While the ITC is considered a fast track to an injunction-like decision (an import ban), it looks like a tough place in which to assert smartphone patents. Companies may now incresaingly expect more favorable outcomes if they sue only in US district courts (and in European courts, which is the case in the Apple/Nokia dispute).
Apple's ITC complaint against HTC (accusing its Android-based phones of infringement) initially related to 10 patents. In October, Apple dropped 4 of those; in October, it dropped another. The staff recommendation that became known today relates to the 5 remaining patents-in-suit (U.S. Patents 5,481,721; 6,275,983; 5,566,337; 5,946,647; 6,343,263).
One of those 5 patents is also asserted against Nokia. There is also a separate investigation (no. 337-TA-704) in which Apple asserts other patents against Nokia; I mentioned before that the ITC staff also viewed those claims negatively. As far as Nokia is concerned, today's recommendation relates only to U.S. Patent No. 6,343,263 on a "real-time signal processing system for serially transmitted data".
Last month Nokia filed a second ITC complaint against Apple over 7 patents.
Next month there will be a hearing on HTC's complaint against Apple. I would be surprised if HTC succeeded. The patents-in-suit didn't look particularly strong to me. Even if Apple infringed them, they look like patents one can engineer around with limited effort.
Apple is also asserting 12 patents against HTC in the US District Court for the District of Delaware. For details see my visualization and reference lists (contained in this PDF document). Those 12 patents are different from the ones Apple asserted against HTC in its ITC complaint.
The bottom line: Apple's fight against Android continues, and so does the huge dispute between Apple and Nokia. The ITC looks ever less likely to agree with the related complaints, but things can still change. If there's no trend reversal, the focus will shift to certain US district courts and European courts...
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