Delays, delays, delays.
Yesterday the ITC had a deadline in the investigation of S3 Graphics' complaint against Apple, but instead of a ruling, the U.S. trade agency and quasi-judicial authority announced that it pushed back the target date for its Commission determination by six days until Monday, November 21, 2011. The Commission is the six-member decision-making body at the top of the ITC. Administrative Law Judges make preliminary decisions, but the Commission has the final say.
What lends the case particular significance is that S3 Graphics is being acquired by HTC, so any headway it makes could give the Taiwanese handset maker leverage, though I tend to doubt that the combined power of HTC and S3 Graphics is going to force Apple into a settlement anytime soon.
In early September I analyzed the issues the Commission appears to take a particular interest in. At that stage, I concluded that Apple's iOS devices (iPhone, iPad, iPod) were, very likely, on the safe side but for Apple's Macintosh computers, the final ITC ruling could be better or worse than the ALJ's initial determination.
HTC's first ITC complaint against Apple increasingly unlikely to go anywhere
The ITC is also investigating HTC's own first ITC complaint against Apple. The initial determination on that one was handed a month ago and found HTC's asserted patent claims valid, but not infringed by Apple. HTC obviously asked for a Commission review, and Apple, equally obviously, filed only a "contingent petition for review", meaning that Apple would prefer for the Commission to adopt the initial determination as the final ruling, but in the event it decides to take a closer look, Apple reserves the right to raise some additional issues in order to up the ante for HTC.
Those petitions aren't in the public record at this stage (redacted versions will become available later), but the headlines are public and show what the parties' want. Based on the public headlines, the ITC staff (the Office of Unfair Import Investigations) didn't ask for a review, a fact that doesn't make things easier for HTC. I wouldn't want to attach too much weight to the OUII (staff) recommendations: the ALJs and the Commission very frequently disagree with the OUII.
But both the ALJ and the OUII are independent, so if they concur that HTC has no case, then that's a certain indication.
I think that Apple and HTC are going to continue to fight for quite some more time. And this includes S3 Graphics as well as, in the opinion of many observers, VIA Technologies, which sued Apple in September over CPU patents. The target date for the final ITC ruling on Apple's first ITC complaint against HTC is December 6, but whatever the outcome may be, I believe the fight will rage on for some more time, and continue to escalate.
Almost five weeks after the hearing, still no decision on Apple's motion for a US-wide preliminary injunction against Samsung
Another important Apple v. Android decision is outstanding in federal court. On October 13, 2011 -- more than a month ago -- the United States District Court for the Northern District of California held a hearing on Apple's motion for a preliminary injunction against four Samsung products. At the hearing, the judge reportedly said she was going to make a decision soon, but apparently not that soon. The hearing took place almost five weeks ago, and I thought there was going to be a decision within a couple of weeks.
I urge everyone not to engage in excessive speculation over what this may or may note indicate for the outcome. There can be any number of reasons, and the delay per se doesn't bode well or ill for any party. That said, there are two hard facts:
For Samsung, every day without an injunction is a day that it can continue to sell products to its resellers (carriers and retail channel). At this stage, it's possible that the most important ones of Samsung's U.S. resellers have large quantities of the accused products in their warehouses and will be fine for the remainder of the Christmas Selling Season.
But this also means that the delay has, in and of itself, weakened the public interest arguments made by Verizon and T-Mobile against a preliminary injunction. Those carriers argued that this Christmas Selling Season was going to be a very important period for the adoption of 4G services in the United States, and that Samsung's devices would have to be available at this critical juncture.
Back in the summer I thought that if Apple won a preliminary injunction in the U.S. against Samsung, this dispute might reach a tipping point and increase the prospects of a near-term settlement. But having monitored the worldwide escalation of this spat, I don't think so anymore. A US-wide preliminary injunction would definitely hurt Samsung's revenue production in its largest market, but it wouldn't be the end of Samsung's aspirations as a device maker. It could force Samsung to modify the physical appearance of some of its products for the U.S. market, and that would matter a great deal to Apple, but it wouldn't be the end of the world for Samsung. In order to prevail, Apple will need to enforce utility patents (hardware and software patents) in several major markets, and will furthermore have to fend off Samsung's assertions of allegedly standards-essential patents.
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