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Friday, October 07, 2011, 01:05 pm PT (04:05 pm ET)

Google, T-Mobile petition ITC to allow Android to freely infringe Apple's iOS

While delaying the launch of Android 4.0 in the wake of Steve Jobs' passing, Google has filed an amicus curiae brief in parallel with US carrier T-Mobile, both of whom ask that the International Trade Commission not ban HTC's Android products, regardless of their infringement of Apple's intellectual property.

The filings clearly acknowledge that Apple isn't simply seeking royalties from Android licensees to cover patent infringement in the manner Microsoft has.

Instead, according to a report by FOSS Patents blogger Florian Mueller, Google threatens that "eliminating all of the major Android device manufacturers from the U.S.—as Apple is attempting—would allow Apple to establish a virtual monopoly in the mobile device industry."

Google specifically states that "excluding HTC Android devices from the U.S. would threaten the only open mobile platform developed and distributed in the U.S.," without clarifying that the primary value of HTC's Android products come from layers of proprietary software owned by Google and HTC, neither of which are any more open than Apple's iPhone iOS, Microsoft's Windows Phone 7 or RIM's BlackBerry OS.

T-Mobile seeks transition period from Android

T-Mobile 14 page brief to the court "asks the ITC to deny an import ban even if an infringement is found," Mueller reports, adding that the carrier recommends a transition period of four to six months if the ITC does decide to ban HTC's infringing phones.

With such a transition period, "T-Mobile and the rest of the industry could change to other devices without harming U.S. consumers," the carrier notes, without disputing that HTC's Android products are indeed infringing upon Apple's intellectual property.

Google, unsurprisingly, is not at all interested in accommodating a transition period that would favor non-infringing alternatives to Android, and opposes a ban of any kind in its own 80 page brief.

Google alarmed by iPhone's success

Google doesn't argue that Android isn't infringing Apple's technology, however. Instead, it warns that a ban would "eliminate the competition from a fast-moving, maverick competitor (HTC)," a shift that "could drive up prices, diminish service, decrease consumers' access to the technology, and reduce innovation."

Google also states that "Apple is the largest seller of mobile computing devices in the U.S.," a far different tune than it played last year when it portrayed Android as an unstoppable force that would steamroll Apple's smartphone with a superior product offered by a wide range of hardware makers, with unique support for Adobe's proprietary Flash.

Google's brief concludes that a preliminary injunction against the four HTC phones Apple claims to be infringing would "likely raise the price of mobile devices to U.S. consumers, diminish the variety of devices available, lower the number of consumers that have access to the critical public health and welfare benefits of mobile computing, reduce innovation in the mobile device industry, reduce the development of critical wireless network infrastructure, lower the number of mobile applications created, raise barriers to entry, and threaten the only open mobile computing platform."

Mueller notes, "All of that sounds great, but I doubt that it will persuade the ITC that patent infringement can be justified with the benefits of a competitive marketplace.

"There needs to be a balance between intellectual property and competition, and neither Google's nor T-Mobile's statement says how and where that balance should be struck. Both just advocate a free pass for Android."