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Wednesday, January 25, 2012, 02:15 pm PT (05:15 pm ET)

Apple appeals HTC ITC case, seeks to revive '263 patent against Android

Apple has appealed last month's ITC final ruling on the HTC case, seeking to revive a key patent it hopes to use against Android while adding two more.

The ITC's Administrative Law Judge initially found HTC infringing upon two out of ten Apple patents last summer, including a '263 patent for a "realtime application programming interface." That patent aimed not just at HTC, but at Google's Android platform in general, notes Florian Mueller of FOSS Patents

Apple argued to the ITC in August that the head of Android development, Andy Rubin, "began his career at Apple in the early 1990s and worked as a low-level engineer specifically reporting to the inventors of the '263 [realtime API] patent at the exact time their invention was being conceived and developed."

Andy Rubin, from Apple to Android


Apple's brief added that "it is thus no wonder that the infringing Android platform used the claimed subsystem approach of the '263 patent that allows for flexibility of design and enables the platform to be 'highly customizable and expandable' as HTC touts."

However, six months after the ALJ arrived at its findings the six member ITC Commission reversed its findings to deliver a final ruling that only found HTC infringing upon the Apple Data Detectors patent, support for which could be easily removed.

On top of that, the ITC gave HTC until April to begin respecting Apple's patent rights, and allowed the company to ship any number of infringing devices into the country prior to that deadline.

The iOS Strikes Back

Ten days after the ITC's ruling, Apple filed an appeal against HTC and the ITC with the US Court of Appeals for the Federal Circuit. This appeal wasn't reported because it wasn't publicly known about until Mueller saw Apple reference the appeal in its parallel action to bring the '263 patent against Motorola.



Motorola claimed the district court should follow the findings of the ITC Commission, which dropped the ITC ALJ's findings of infringement, but Apple stated that "the Commission's decision is on appeal to the Federal Circuit and has no preclusive effect in this [District] Court."

If Apple can successfully appeal the ITC's final decision on the '263 patent against HTC, it will "greatly increase the business impact of the import ban," Mueller notes. Essentially, it would require significant changes to how Android works, meaning HTC couldn't simply remove a feature to come into legal compliance.

That '263 same patent is already being argued against Motorola and other Android licensees, so a finding in favor of Apple would have broad impacts across the Android platform.

Additionally, if Android's current licensees were required to move to another platform to escape infringement, it may deprive Microsoft of negotiated royalty fees from their use of Android, as Apple isn't seeking to monetize Android, it's seeking to stop it from infringing its own intellectual property.

One More Thing

On top of the '263 patent, Apple may also ask the Federal Circuit appeals court to review the ITC's initial determination against two other patents, '721 on a "method for providing automatic and dynamic translation of object oriented programming language-based message passing into operation system message passing using proxy objects" and '983 covering and "object-oriented operating system."

The ITC Commission did not find infringement in either patent, but Apple may hope, Mueller notes, that the appeals court may let it prevail on one or both of those patents on top of the '263, all of which pertain to the core operating system in ways that can't be easily remedied by simply changing the look or dropping features of HTC products.

"The drop-out rate of patents asserted in ITC complaints is astoundingly high," Mueller added, "and I wouldn't be surprised if the Federal Circuit found that the ITC erred in favor of respondents in a few cases."