Monday, July 11, 2011

Apple files second ITC complaint against HTC: better luck next time?

[UPDATED after complaint became available]

The ITC website reveals that Apple filed another patent infringement complaint against Android device maker HTC on Friday, July 8, 2011. By my count, that's Android-related lawsuit no. 48 (some disputes consist of multiple lawsuits). Apple asserts five patents (listed further below), three of which are also being used against Samsung (in federal court, not before the ITC).

This is already Apple's second ITC complaint against HTC. The first one was filed on March 2, 2010 over ten patents. You can find a detailed list of the assertions in that complaint in this reference document (PDF) viewable on -- and downloadable from -- Scribd.

I take it that Apple is skeptical of the outcome of that ongoing ITC investigation and, therefore, wants a second try with potentially stronger patents. In April, the ITC staff (the Office of Unfair Import Investigations, which participates in most ITC investigations as a third party) expressed its opinion that HTC did not infringe any valid Apple patents within the scope of that investigation. The target date for a final initial determination by the Administrative Law Judge (ALJ) hearing the case is August 5, 2011 (as I already wrote in February). The ALJ could still rule in Apple's favor: the staff recommendation is, after all, just an opinion. However, a negative ITC staff recommendation does not bode well to say the least. I'm sure Apple will fight hard to make the original complaint succeed but doesn't want to depend on the outcome of that case.

Apple isn't the first company to file a second ITC complaint toward the end of an ongoing investigation of a previous complaint against the same defendant. In late March, Nokia filed a second ITC complaint against Apple. They settled in June.

Apple definitely needs to keep up the pressure on Android. The day before yesterday I was interviewed by TiPb's Rene Ritchie in a podcast and said that Apple is getting better and better since its original complaint against HTC.

In addition its original ITC complaint against HTC, Apple filed two lawsuits against HTC last year in Delaware. Those are progressing, but things are taking a long time.

There's another reason for which Apple needs to step up its patent enforcement against HTC: the Taiwanese company just agreed to acquire S3 Graphics Co., a company that already had some overlap with HTC in its ownership structure. One very interesting aspect of that purchase -- in some observers' opinion, the primary if not exclusive reason for the deal -- is that just a week and half ago (on July 1, 2011) the ALJ leading the ITC investigation of S3's complaint against Apple issued a notice of a final initial determination, according to which Apple was deemed to infringe two valid S3 patents. It's unclear how easily Apple could replace -- or perhaps already has replaced -- the technology at issue in that case. Some say it's about rather outdated or obsolete technology. But it's also possible that HTC hopes to be able to force Apple into a favorable settlement in light of the possibility of a formal import ban being ordered by the ITC against infringing products within a matter of months.

A new complaint is also an opportunity for Apple to bring accusations targeted at HTC's latest products. The title of the complaint is "Portable Electronic Devices and Related Software", which suggested to me earlier today (before the complaint became available) that Apple accuses both smartphones and tablet computers (the HTC Flyer) of patent infringement. This has now been confirmed.

Accused HTC products

All of the accused products are Android-based. Apple's complaint refers to two groups, the "Accused HTC Android Products" and the "Accused HTC Capacitive Touch Panel Products". All of the products in the second group are also Android-based. That group is mostly a subset of the first group.

  • Smartphones

    • HTC Droid Incredible

    • HTC Droid Incredible 2

    • HTC Wildfire

    • HTC T-Mobile mytouch 3G

    • HTC T-Mobile myTouch 3G Slide

    • HTC T-Mobile G1

    • HTC T-Mobile G2

    • HTC Evo 4G

    • HTC Aria

    • HTC Desire

    • HtC Hero

    • HTC Merge

    • HTC Inspire 4G

    • HTC Evo Shift 4G

    • HTC Thunderbolt

    • HTC Thunderbolt 4G

  • Tablet computer

    • HTC Flyer

The five patents-in-suit

These are the patents Apple asserts in this new complaint:

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