Wednesday, June 20, 2012

Remnants of HTC's ITC complaint against Apple in bad shape after claim construction order

Following the dismissal of five patents it borrowed from Google (a decision it has just appealed), HTC's second ITC complaint against Apple is down to only three patents. And the outcome with respect to those three remaining patents is likely going to be the same as what happened to HTC's first ITC complaint against Apple: a finding of no violation.

Yesterday, Administrative Law Judge (ALJ) Thomas Pender's claim construction order, which came down on Monday, entered the public record. It addressed only the remaining patents but not Google's patents, which the ALJ dismissed. I have meanwhile analyzed the order in detail and think HTC has no chance of winning with respect to two wireless patents from the same inventor, U.S. Patent No. 7,417,944 and U.S. Patent No. 7,672,219, and it also faces a steep challenge with respect to the third patent, U.S. Patent No. 7,765,414 (a circuit/interface patent).

Judge Pender construed five terms from the '944 and '219 patents, and two terms from the '414 patent. While some of Apple's proposed narrowings were rejected, it prevailed on enough of them to be likely to avoid an infringement finding.

With respect to the '944 and '219 patents, one of various limitations that the ALJ adopted from Apple limits the scope of the '944 patent to the OFDMA digital modulation scheme, which the products accused in this investigation don't implement (it's used in some newer standards such as 4G/LTE).

Concerning the '414 patent, Apple couldn't narrow the meaning of the term "integrated interface" (and the word "integrating"), but the term "turned on" was construed in accordance with Apple's proposal. The judge adopted Apple's proposed definition and added some additional clarification, but the key thing is that the scope of the claim has been narrowed substantially, against HTC's various objections.

In the instances in which Judge Pender agreed with Apple or decided on his own construction that was close to Apple's, he was also close to or even consistent with the ITC staff's proposals. I'd be surprised if this ALJ held Apple to infringe even one of HTC's asserted claims. If this impression is correct and he finds no violation, HTC will have to persuade the Commission, the six-member decision-making body at the top of the institution, to review the initial determination, but it won't get much, if any, support from the staff, which plays an advisory role. Arguing against the ALJ, the ITC staff (the Office of Unfair Import Investigations) and Apple is going to be very difficult. Apple will still have to be careful, but as long as it does its job, it really doesn't have to lose sleep over this particular investigation.

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