Patent Battle Continues Between Apple And HTC
September 10, 2012

HTC Could Keep iPhones From American Hands

Michael Harper for — Your Universe Online

Apple may be set and ready to trot out their latest iPhone, but if Taiwanese smartphone maker HTC has their way in an ITC court, the Cupertino company won´t be able to sell any of these devices (or the newest iPad) on American soil.

According to Bloomberg, Judge Thomas Pender hinted on Friday he wasn´t yet convinced by Apple that HTC´s patents are invalid.

“Clear and convincing means something to me,” said ITC Judge Pender.

“I have to be pretty darn certain a US patent is invalid.”

Though Apple recently bested Samsung in their battle over trade dress and design patents, HTC may have the upper hand in this case over patents which cover the way data is transmitted over 4G LTE. Apple hadn´t played the 4G game until this year, when they released the latest LTE compatible iPad. Now, as rumors point towards a 4G-equipped iPhone, HTC could have enough ammunition in their fight to persuade the ITC to ban these devices in the US. According to the Bloomberg report, this ban could give HTC the leverage they need to settle with Apple, thereby ending the long, expensive process and possibly earning HTC some royalties as well.

Apple, on the other hand, claims HTC doesn´t have standing to sue over the use of these two patents, an argument which Judge Pender has yet to be won over by.

According to Florian Mueller with the FOSS Patents blog, Apple is also arguing that HTC only recently purchased these patents with intent to sue Apple over them. While some patent sales deals come with a deficiency which prevents the buyer from leveraging these patents straight away, the original holder of these patents, ADC, didn´t look for such a deal and instead sold to HTC right out.

“I actually think it would make sense for the ITC to dismiss cases in which acquired patents get asserted, especially if such assertions occur after only a short period of time following the acquisition,” says Mr. Mueller in his blog post concerning this case.

“It's really quite a stretch to let patent buyers and hoarders use the ITC as a forum (because it's fast and, especially, because it's easier than in federal court) to obtain, in the form of an import ban, injunctive relief”

HTC bought these patents from ADC in April 2011, soon after they started selling their first 4G enabled smartphone, according to Bloomberg. HTC purchased these patents, along with others, for a reported $75 million.

Interestingly enough, Mueller also points out that one of the patents Apple says HTC has infringed upon was also recently acquired by British Telecom.

Apple started this trial in 2010, filing their first infringement claim with the ITC. According to Apple Lawyer Michael McKeon of Washington firm Fish & Richardson, this most recent case has been “filed in retaliation against Apple.”

“I don´t care if they bought these patents to sue you or not,” Judge Pender replied. “They are a property right.”

A court filing, however, reveals HTC claims they bought these patents in anticipation of such a patent trial.

According to court filings, HTC bought these patents with the understanding Apple was already infringing on them, “to protect itself and its customers from these aggressive tactics and to preserve its ability to compete in the United States.”

Another interesting note from Friday´s court filings: Though Apple seems to have slacked a bit in their promise to “double-down” on secrecy as far as their supply chain is concerned, they´re still keeping a tight lid on their newest device internally. Judge Pender asked Apple Lawyer McKeon about the new iPhone, saying, “It will be thinner and the screen bigger?”

McKeon refused to answer, only replying, “That´s what the blogs are saying.”