Sunday, June 24, 2012

Apple clarifies and reinforces push for immediate U.S. import ban of 29 HTC Android devices

After Apple filed its third ITC complaint against HTC, seeking an immediate import ban against 29 new devices that allegedly continue to infringe the '647 "data tapping" patent, the Taiwanese company's lawyers replied that Apple was trying to broaden the scope of the import ban ordered in December and that a full-blown new investigation was needed to evaluate Apple's claims.

On Thursday, Apple replied to HTC's letter. While I agreed with HTC as far as Apple's reference to the linking of data to single actions was concerned, Apple's letter of June 21 clarifies that what Apple considers infringing are links to multiple actions. In my opinion, HTC's objection was justified. Apple's claim charts showed screenshots of single-action as well as multi-action links. Apple says that its complaint had always been clear because it referred to links to multiple actions, but in my opinion, the clarification that Apple's letter provided on Thursday was indeed necessary.

Based on this clarification, I believe the ITC will act pretty quickly. I don't know whether it will order a temporary ban, but at the least I think Apple will get the chance to prove continued infringement in an expedited proceeding. From an institutional point of view, I'm sure the ITC will want to ensure that its exclusion orders are respected. In this case, there is at very least a well-founded suspicion of HTC pushing the envelope in order to find out where the ITC draws the line.

HTC's behavior calls into question its CEO's claims of last December that HTC had no problem with removing a little-used feature. If the feature didn't matter (which flies in the face of my own experience as an Android user), HTC would have removed it. Instead, it opted to risk alienating the ITC as an institution, which is not a good idea given that HTC and its subsidiary S3 Graphics (and its affiliated entity VIA Technologies) have other cases (one defensive one and three offensive ones) pending at the U.S. trade agency.

In a technical sense, HTC's CEO was certainly right that it's easy to throw out this feature, at least provided that Google cooperates with HTC and throws out its Linkify library (and modifies its GMail client accordingly). I guess that's why HTC believes it's playing a low-risk game: if Apple wins another import ban, HTC can probably change its products overnight. But like I said before, it should think about the ramifications of upsetting the ITC, looking beyond this one case. And to the extent that Google has responsibility for this, it should also think about its relationship with the ITC in more strategic terms.

Apple is right that HTC's new Android devices, based on the undisputedly accurate screenshots Apple provided, still link multiple actions to detected structures. A short press on a detected structure triggers only one action, but a long press presents a menu with multiple options. On the surface, this suggests a continued infringement of the '647 "data tapping" patent unless Google and HTC have restructured the relevant code. For example, Judge Posner just outlined a way in which, according to his claim construction (which is slightly different from that adopted by the ITC), one could avoid infringement of the '647 patent while still providing the same functionality to the end user.

Apple's response to HTC's objections dismisses any arguments that new devices are not covered by the exclusion order. Indeed, in a fast-moving market like this, the ITC (or a court) would never be able to stop infringement if new products were free to infringe.

Furthermore, Apple rejects HTC's claim that Apple somehow waived its right to enforce the import ban with respect to Android apps that weren't explicitly addressed in the original complaint. In this context, Apple says the following:

"That HTC’s current products may bear different names, or have updated or modified hardware or software, is of no moment; they run the Android platform that contains functionality found to infringe the ‘647 patent. Moreover, at least one of the applications that Apple identified in its Enforcement Complaint as having infringing functionality--HTC Messages--was at issue in the underlying Investigation, was the subject of extensive expert testimony and scrutiny, and ultimately found to infringe the '647 patent."

As far as the GMail client is concerned, Apple points out that "HTC cannot avoid infringement or the Commission’s LEO by feigning ignorance with respect to third-party functionality that it installs on its Android Products and imports into the United States, nor can HTC avoid an enforcement proceeding on that basis".

Android isn't truly open-source software, and that's why HTC doesn't have access to the source code of the GMail client. But that doesn't justify infringement.

Apple's letter voices the assumption that the kinds of arguments HTC made in its reply letter to this enforcement complaint are consistent with what it told U.S. customs officers a few weeks ago to overcome a temporary seizure of certain products it wanted to launch in the United States:

"HTC's misstatements here provide further support for Apple’s request for relief and temporary emergency action. As set forth in its Enforcement Complaint, Apple is concerned that these misstatements formed the basis for U.S. Customs and Border Protection's ('Customs') apparent determination not to enforce the LEO and exclude HTC’s new Android Products. That is, if HTC is now telling the Commission that its Android Products contain functionality that 'links only a single action to a detected structure,' Apple can fairly assume that HTC told Customs the same thing, despite the incontrovertible showing in Apple’s Enforcement Complaint that HTC's representation is wrong. Thus, HTC's factually erroneous excuse for continued importation of products covered by the LEO bolsters the necessity for emergency relief."

HTC could have asked for clearance of its redesigned products. It would have had the option of asking the ITC for an advisory opinion. But in a footnote of its letter, HTC only said that "[t]here is no requirement -- as Apple implies -- that HTC request an advisory opinion from the Commission prior to importing non-infringing products". HTC is right that there's no such requirement, but that doesn't mean that it was a good idea to choose the risky path HTC has opted for. If it had removed the data tapping feature and the underlying functionality (the Linkify library), its products would be clearly non-infringing and an advisory opinion would be a waste of time and resources. But since HTC's products still do link to multiple actions that can be performed on detected data structures, I think HTC's decision to just go ahead and import products that raise such questions was, to put it mildly, brash.

Again, if Apple prevails here, it won't be the end of the world for HTC. It will then modify its products and steer clear of infringement. It will continue to operate in the U.S. market. But I don't see the point in treating the ITC as disrespectfully as HTC is doing in the event that Apple's allegations are, even if only in part, accurate.

In my opinion, HTC is barking up all the wrong trees by drawing Apple's ire and, still worse, disrespecting the ITC. The target of HTC's frustration should be only one company: Google. It's Google's Linkify library that caused the infringement problem in the first place. It's Google's recklessness and its unfairness vis-à-vis HTC that it didn't remove the Linkify library from Android, for all device makers, following the December 2011 import ban. And it's Google's lack of openness with respect to the GMail client, a mandatory Android component that apparently continues to infringe. HTC should insist that Google provide a level playing field by taking the necessary steps. In that case, HTC's competitiveness relative to other Android device makers would not be affected.

Instead of insisting that Google do what it ought to do in light of a valid and enforceable exclusion order, HTC acts as a Google puppet to find out, in the riskiest way of all, where the ITC will draw the line. HTC should do what's best for HTC, not what's best for Google. It should immediately comply with the import ban in order to avoid the need for the temporary emergency measure requested by Apple, and file for an advisory opinion. On the basis of that opinion, it should then insist that Google, too, abide by the law.

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