After twice postponing its final ruling on Apple's first complaint against HTC, the United States International Trade Commission (ITC) has finally announced its decision.
The formal order (which is not part of the document I linked to above) makes it clear that this is not a general ban against HTC Android devices:
[...] the Commission hereby ORDERS that:
1. Personal data and mobile communication devices and related software covered by claims 1 or 8 of the '647 patent that are manufactured abroad by or on behalf of, or imported by or on behalf of, [HTC and its affiliates] are excluded from entry for consumption into the United States, [...]
So what Apple has won is a formal import ban scheduled to commence on April 19, 2012, but relating only to HTC Android phones implementing one of two claims of a "data tapping patent": a patent on an invention that marks up phone numbers and other types of formatted data in an unstructured document, such as an email, in order to enable users to bring up other programs (such as a dialer app) that process such data. The import ban won't relate to HTC Android products that don't implement that feature, or that implement it in ways not covered by those patent claims.
If Google can implement this popular feature, which users of modern-day smartphones really expect, without infringing on the two patent claims found infringed, this import ban won't have any effect whatsoever.
Otherwise HTC will have to remove this feature, which would put HTC at a competitive disadvantage as compared to other smartphone vendors, including other Android device makers.
Either way, this ruling falls far short of anything that would force HTC out of the U.S. market in the near term. Also, out of ten patents originally asserted, Apple finally prevailed on only one. Apple will need a higher "hit rate" in the future, and it will have to enforce patents that are greatly more impactful than this one.
Out of ten patents originally asserted, Apple finally managed to enforce one, and it's one of medium value.
In mid-July, an Administrative Law Judge (ALJ) found HTC to infringe two of four Apple patents still in play at that stage of the process. HTC asked the Commission, the six-member decision-making body at the top of the ITC, to review the finding. Apple would have preferred for the Commission to adopt the ALJ's recommendation, but in the event that a review would take place (as it did), Apple also wanted to raise some questions of its own and asked for another look at the two patents the ALJ did not deem infringed. But as I expected, the review focused on the two patents the ALJ deemed infringed.
A much broader and potentially more impactful patent on realtime signal processing was not deemed infringed. That one could have had much more impact on HTC and, more generally, Android than the data tapping patent.
It's important to bear in mind that Apple is not the only one to sue: it is being aggressively countersued by all three major Android device makers. In a world in which only Apple holds patents, it could enforce patent after patent in order to force its competitors to remove certain features. But in the real world, there's a race going on for the first decision of major disruptive impact, and the ten patents Apple initially selected for this first ITC complaint were clearly chosen for that purpose (mostly operating system patents). A knock-out blow is a must-have, not merely a nice-to-have, when you're embroiled in a race for leverage with a view to settlement negotiations.
That said, Apple has made some progress. It now has one patent that it can also assert against other Android device makers unless the data tapping feature can be implemented in non-infringing ways, in which case there wouldn't even be a point in suing other Android device makers over it.
Apple needs to find several more patents of the "data tapping" kind -- or, alternatively, one or two fundamental patents for which there's no viable workaround -- in order to really have competitive impact with its many litigations targeting Android. It's a starting point, and let's not forget that this is just the first of dozens of lawsuits Apple has already brought against the Android platform. There's a learning curve involved with anything, and patents need to be battle-tested. Chances are that Apple's lawsuits will become more effective.
If you'd like to be updated on the smartphone patent disputes and other intellectual property matters I cover, please subscribe to my RSS feed (in the right-hand column) and/or follow me on Twitter @FOSSpatents and Google+.
Share with other professionals via LinkedIn:
