Yesterday I reported on an Apple letter to the ITC in support of its recent enforcement complaint against HTC. A new HTC letter has now shown up on the ITC document server. HTC filed it on Friday, but it appeared on the document server only today. And it provides further useful clarification.
HTC says Apple has backtracked from its original complaint with respect to single-action links. What HTC calls backtracking I called a clarification. I agree with HTC that Apple's letter was unspecific by saying that "those screenshots [of single-action links] appear in Apple’s claim chart for a different purpose". Just like HTC's lawyer, I, too, missed an explanation of what that different purpose might be. But I don't think HTC can avoid an emergency proceeding just because Apple's complaint lacked clarity. If any clarity was lacking (which Apple denies, but again, on this one I agree with HTC), it has meanwhile been provided and cannot serve as an argument for allowing infringement.
Apple's letter had rightfully criticized HTC's first letter for failing to explain why it thought the multi-action links presented by Apple didn't infringe. That first HTC letter contained mostly procedural arguments and made an extremely unconvincing public interest argument (extremely unconvincing because HTC had been given four months to modify its products to avoid infringement and because it didn't make use of its right to ask the ITC for an advisory opinion on its presumed workaround). In the latest letter, HTC finally addresses that part. The sequence of events shows that we are already, practically speaking, in the middle of an emergency proceeding. The parties are now exchanging all sorts of arguments that are usually made only after the ITC decides to open an investigation.
HTC's latest non-infringement argument is useful information. Besides the screenshots of single-action links, an issue that has meanwhile been clarified, HTC has highlighted another kind of functionality that I believe doesn't infringe the '647 "data tapping" patent. But HTC also describes one kind of functionality that I think raises at least potential issues, and I don't see any point at all in HTC's GMail-related arguments.
Since Apple needs to show only one actual infringement to be entitled to temporary emergency measures, I continue to believe there's considerable risk here of an exclusion order coming down quickly. But Apple also has to be careful about making a clear distinction between the functionalities it accuses of infringement and the ones it addressed in its complaint for whatever other reasons. Apple has just seen in the Chicago case against Motorola that asking for too much at the same time can be counterproductive.
I'll now address the three different issues one by one:
HTC has a strong point that Apple cannot claim infringement of its '647 patent as far as generic text selection by means of a long-press on a text document is concerned. I know that feature because I sometimes use it on my Samsung Galaxy Note. That phone still implements "data tapping", but it automatically detects only U.S. phone numbers, not others. So I frequently make a manual selection of a text passage and then copy that text into the dialer app or the contact list app. I believe it would be helpful if Apple clarified that this is, per se, not an infringement of the '647 patent, which relates to a detection of formatted data by the phone (as opposed to the end user). Even if one can do a short-press on a text passage selected by long-press and gets a menu with various options, that still doesn't constitute infringement of the '647 patent in my opinion.
Where I see at least a potential issue (which I believe HTC should have clarified with the ITC by way of requesting an advisory opinion) is a scenario in which a data structure (such as a URL, an email address or a phone number) is detected and highlighted (typically with blue color and an underlining). For example, Google Calendar does this according to Apple's screenshots, and tapping on such a structure then brings up a pop-up menu with multiple options. HTC argues that the relevant data-action "link must exist prior to the user interface's enablement of selection because the user interface enables selection of a 'linked action,' i.e. an action that has already been linked". This is either an outright infringement (if one considers that the detection of data and at least some kind of linking does take place beforehand, with a short press leading to a single linked action and a long-press bringing up a whole menu of other choices) or if it isn't one, it's at least something that HTC should have clarified with the ITC before importing products into the United States that have this functionality. I could understand if the ITC ordered an emergency measure pending clarification of this potential infringement issue.
As far as GMail is concerned, my impression of ongoing infringement is only reinforced by HTC's latest letter. HTC still presents only two kinds of arguments with respect to GMail. One is totally ridiculous (the ITC might even feel offended by the suggestion that it might be persuaded by such an idiocy), and the other one is not necessarily ridiculous but it's also very weak.
The ridiculous argument that constitutes an insult to human intelligence is the claim that HTC does not have control over GMail. Everyone knows that Android isn't truly open source: mandatory components such as GMail are closed-source, proprietary software. But just like the open-source nature of a program cannot excuse infringement, its closed-source nature cannot justify distribution of infringing material by third parties like HTC. Like I said in my previous post, HTC is being used here by Google as a puppet or guinea pig. Google should ensure that GMail doesn't infringe. HTC should insist on this. Instead, HTC will suffer any loss that will result from what appears to be a continued infringement on Google's part. Google could also solve the whole commercial problem for HTC: by ensuring that all Android device makers have to comply with the ITC ruling, Google could provide a level playing field.
I cannot imagine that the ITC is going to buy HTC's argument that it cannot access the GMail source code no matter how frequently its lawyers repeat it.
The other argument is that Apple should have accused the GMail client in the original investigation. Since I don't have access to the full record of the original investigation, I don't want to call this argument ridiculous, though it's possible that I would conclude so if I had access to the record. What I can say is that it's at least very weak because the exclusion order clearly meant to stop all infringement of the '647 patent, by any HTC products and regardless of which apps are involved.
Even HTC's second letter doesn't explain why the GMail client doesn't infringe. It just presents arguments as to why any infringement, if Apple is right that there is one, should be allowed to continue. I can't imagine that the ITC would subscribe to this "logic".
Stripped of the parts that are or at least appear overreaching, I think Apple's complaint still has merit. Even with two letters, HTC has not been able to prove Apple's complaint unfounded. Apple's risk is that the ITC may agree with HTC that the emergency complaint partly goes beyond the scope of the original exclusion order, and in that case, I don't know whether the ITC will order emergency relief only with respect to GMail (which looks like a very strong case for Apple) or whether it's going to be an all-or-nothing decision. If it's all or nothing, things will probably take more time than Apple hopes, unless the ITC wants to make an example here so that other infringers will in the future ask for advisory opinions before importing potentially-infringing goods.
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