Android Uncertainty: Apple Wins a Round Against HTC
By Harry McCracken | Saturday, July 16, 2011 at 9:04 am
On Friday, Apple won a round in its court battle against Taiwanese phone maker HTC, when an International Trade Commission judge ruled that HTC’s Android handsets violate two Apple patents. HTC is appealing the judgement.
My two favorite tech/law bloggers are FOSS Patents’ Florian Mueller and This is My Next’s Nilay Patel. Mueller thinks this court decision could be a big deal:
I have looked at those patents before and they appear to be very fundamental. They are very likely to be infringed by code that is at the core of Android. It’s telling that those two patents are also at issue between Apple and Motorola (and the ‘263 patent was also used by Apple against Nokia). A while after Apple started suing HTC, Motorola filed a declaratory judgment action against a dozen Apple patents including those two. Apple then counterclaimed by asking the court to determine that those patents are valid and infringed by Motorola. So the relevance of this goes way beyond HTC!
Patel, meanwhile, points out that this is a legal waypoint rather than the end of the road, and points out that HTC seems to be saying that losing wouldn’t be the end of the world.
Between Apple and Oracle’s court cases and Microsoft’s, um, nice-guy strategy of “letting” Android handset makers pay a licensing fee to avoid getting sued–although it is suing Barnes & Noble over the Nook–Android is the Joe Btfsplk of mobile operating systems. It may be wildly popular, but it’s also got a little cloud hovering over its head.
I’m no lawyer, so I’m in a lousy position to guess at how this might all sort out. Certain Android phones might have to be pulled from the market; Android might require feature adjustments to remove patent-violating aspects; Google and/or phone manufacturers might have to fork over large amounts of money to patent owners. But when I think of Apple suing its smartphone competition, I think of a famous patent war I wrote about last month: Polaroid’s court case against Kodak over the latter’s instant cameras. Polaroid’s victory was decisive–Kodak had to pull its cameras and film from the market. It was also futile. Polaroid moved more product and made more money when Kodak was in the game than it did after forcing that company out of the market.
There’s no scenario under which Android simply ceases to exist–at worst, it might have to be rejiggered in ways that would make it less iPhone-like and possibly less appealing. I still can’t help thinking that Android’s success is ultimately good for Apple, not a threat. Companies that are a little scared have a far better record of flourishing over the long haul than those who seemingly have comfortable monopolies on something.
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July 16th, 2011 at 8:19 am
The Polaroid / Kodak comparison isn't very accurate as both of those companies were fighting for a shrinking (now dead) market. Apple's iOS and Android are fighting for a thriving market in its infancy.
July 16th, 2011 at 11:19 am
The size of the market isn't the point here, is it? It's to do with the consequences of infringement.
July 16th, 2011 at 11:49 am
I would argue the "value" of the infringement is DIRECTLY related to the size of the market. If you infringe on property that has no value, is it really infringement? "If a tree falls in a forest and no one is around to hear it, does it make a sound?" – that kind of thing.
July 18th, 2011 at 6:59 am
The answer is yes. Infringement is infringement. The size or impact of the infringement is a totally separate issue altogether.
July 21st, 2011 at 9:45 am
It will come down to whether or not the patent is valid. My guess is that it will be found to not be valid.
A valid patent must first not be obvious to someone with knowledge in the particular "art." and it has to meet other criteria as well.
One can achieve the same result without ever infringing on a patent.
A patent written to broadly can also be declared invalid.
As an engineer I have spent a bit of time going back and forth with claim examiners who don't have a clue what they are doing and pull completely unrelated prior art to reject patents.Likewise there are examiners who rubber stamp everything.
This case will end up in court over the patent validity. I doubt Apple will win.
The current law suits only help the competition. I, personally, will never own an Apple product. I had an iPhone 3G for work but the iOS4 destroyed it. It had not replaceable battery, and it didn't have key features I wanted. I turned it in to corporate and bought my own droid. Much better.
I don't have to impress anyone by flashing an iPhone. And for computing I much prefer Linux.
July 22nd, 2011 at 7:57 am
Agreed. When read, the patent could cover a LOT of ground and isn't non-obvious.
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