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The Plot Thickens in Apple Patent Battle with HTC


Written by Gene Quinn
President & Founder of IPWatchdog, Inc.
Patent Attorney, Reg. No. 44,294
Zies, Widerman & Malek
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Posted: June 23, 2010 @ 4:38 pm
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There has been yet another development in what is fast shaping up to be an epic patent battle between Apple Inc. (NASDAQ: AAPL) and High Tech Computer Corp.(PINK: HTCCF) (aka HTC Corp.), HTC (B.V.I.) Corp, HTC America, Inc. and Exeda, Inc. (collectively referred to as HTC).  On Monday, June 21, 2010, Apple filed yet another complaint against HTC in the United States District Court for the District of Delaware.  On March 2, 2010, Apple, Inc.  filed two lawsuits against HTC Corp., alleging that HTC infringes some 20 Apple patents related to the iPhone’s user interface, underlying architecture and hardware.

The latest Apple complaint continues to allege direct infringement of Apple patents, this time four separate patents.  The complaint also alleges indirect infringement; specifically contributory infringement and inducement to infringe.  The patent asserted by Apple are US Patent No. 7,282,453 (Count I); US Patent No. 7,657,849 (Count II); US Patent No. 6,282,646 (Count III) and US Patent No. 7,380,116 (Count IV).  The ’453 patent and the ’849 patent were both asserted previously by Apple (see what I have previously referred to as the second complaint filed March 2, 2010).  It appears as if they are added here due to recently issued Certificates of Correction.  The ’646 patent and the ’116 patent were not previously asserted in either of the two complaints filed March 2, 2010 in the District of Delaware.

At the time Apple filed its original complaints in the District of Delaware, Apple CEO Steve Jobs explained that Apple can sit back and “watch competitors steal our patented inventions, or we can do something about it. We’ve decided to do something about it. We think competition is healthy, but competitors should create their own original technology, not steal ours.”

While HTC is the immediate target of Apple’s discontent, let’s be perfectly honest.  The real target is Google (NASDAQ: GOOG) and the fight is about the Google operating system for smart phones.  Apple simply cannot allow Google to poke its nose under the tent.  Apple is too heavily invested in the iPhone and now the iPad. In fact,  Apple has sold over 40 million iPhones worldwide, and has sold more than 3 million iPads since the product first became available only 3 months ago, which translates to 37,500 iPads a day!  See Analyst estimates 16.5 million iPads sold by 2012. On top of that, on the first day orders were accepted Apple received 600,000 pre-orders for the new and yet to be released iPhone 4.  See Apple: 600,000 iPhone 4 preorders on first day.  With this kind of popular product and a company that is so heavily leveraged on iThis and iThat, look for Apple to fight to win.

HTC, however, has not exactly rolled over, although it would seem likely that if Apple really has them in its sights HTC will continue to fight this battle from behind in a responsive way.  Nevertheless, on May 12, 2010, HTC Corporation launched its own legal action against Apple Inc., filing a complaint with the United States International Trade Commission (ITC) to halt the importation and sale of the iPhone, iPad and iPod in the United States.  Jason Mackenzie, Vice President of North America, HTC Corporation explained at the time that HTC was “taking this action against Apple to protect our intellectual property, our industry partners, and most importantly our customers that use HTC phones.”

But Apple had even beat HTC to the ITC. Simultaneously with filing in the District of Delaware on March 2, 2010, Apple also filed a complaint with the ITC, pursuant to section 337 of the Tariff Act of 1930, as amended, 19 U.S.C. § 1337.  The Apple ITC complaint alleged violations of section 337 based upon the importation into the United States, the sale for importation, and the sale within the United States after importation of certain personal data and mobile communications devices and related software by reason of infringement of certain claims of U.S. Patent Nos. 5,481,721; 5,519,867; 5,566,337; 5,929,852; 5,946,647; 5,969,705; 6,275,983; 6,343,263; 5,915,131; and RE39,486.

Subsequent to the Apple ITC filing the ITC voted to institute an investigation of certain personal data and mobile communications devices and related software. The products at issue in the investigation relate to hardware and software used in mobile communication devices, including but not limited to cellular phones and smart phones. The investigation is based the complaint filed by Apple, which requested an exclusion order and a cease and desist order.

The ball is now in HTC’s court, so to speak.  This is going to get very interesting indeed.

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Posted in: Apple, Companies We Follow, Gene Quinn, International Trade Commission, IP News, IPWatchdog.com Articles, Patent Litigation, Patents

About the Author

is a Patent Attorney and the founder of the popular blog IPWatchdog.com, which has for three of the last four years (i.e., 2010, 2012 and 2103) been recognized as the top intellectual property blog by the American Bar Association. He is also a principal lecturer in the PLI Patent Bar Review Course. As an electrical engineer with a computer engineering focus his specialty is electronic and computer devices, Internet applications, software and business methods.

 

25 comments
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  1. Stupid! These lawsuits are a sign of Apple’s fear of Android. Apple is not going to stop android any time soon since they have to go through Motorola, Dell, Samsung, etc.

  2. Sal-

    Apple fears Android? Really? I’d Android us so great why is it that Apple demand is off the charts?

    You can pretend that Android phones are as desirable as the iPhone if that helps you get through the day, but you really need to get a grip if you ask me.

    Consumers are doing all the talking and Apple is on the driver’s seat with all the others bringing up the rear.

    Sent from iPhone :-)

  3. Gene,

    Definitely a thickening plot. This is the first time I’ve heard of two parties locked in an IP infringement battle each also filing Unfair Trade Practice complaints in the ITC. Apple and HTC are definitely taking this fight up a notch or two.

  4. Gene,
    just a quick reality check: industry analysts agree that with current trends being what they are, by the end of the year Android will have overtaken Apple in market share regarding new phones, and might even overtake BlackberryOS (currently America’s number 1 smartphone OS). Android is definitely a competitor.

  5. Thanks for the reality check, but do remember that Apple has never had as it’s business model the need to be biggest, witness Micrisoft. What Apple wants us to be the best and to attract affluent users, which they do. More and more business people and lawyers are shifting from Blackberry to Apple.

    The allure of Android is due to AT&T having the exclusive on the iPhone.

    Also remember that if Apple wins this patent litigation, which I think is mire likely than not at this point, Android will be dealt a serious blow.

    Also remeber that Apple has all kinds of ancillary products, and unlike many if those companies they will show down with they have a full and solid patent portfolio. Without naming names at the moment, if you do an analysis of the patent portfolios of some others you will find mostly filler, low quality patents. So Apple will have a decided upper hand in avpatent battle right out of the box.

    Sent from iPhone.

  6. Put the iPhone on Verizon and Sprint and see how long the Android phones last.

    The only reason I’m still a Crackberry user is I refuse to switch to AT&T. I have an iPod Touch and just installed OS4 last night. If that was only my phone too…

  7. Android is a real competitor, and the best thing about it is, it’s not Apple. You Apple Fanboi’s can have your iCrap. Apple’s appeal is to people who don’t know how to use a real computer. Or women who think they are “pretty”

  8. Who else is tired of all the Apple fan boys talking up their trendy overpriced devices? The millions of iPhones and iPads sold is directly proportional to the number of suckers willing to over pay for devices that are not good enough and will need to be updated in 6 months.

  9. Gene,

    You put in a good effort to make your article seem impartial, but when you start posting in the comments showing your fanboy colors, it kinda ruins the effect.

    Parts of Apple’s lawsuit are completely frivolous and have nothing to do with code or hardware patents, but rather with the gestures one uses to navigate. This is akin to patenting a language. They tried the same crap with the desktop interface which they mostly stole themselves. The way a user interacts with a device should never be a patentable thing. By forcing users to learn new languages they are unfairly stifling their competition.

    The allure of Android is not limited to AT&T aversion. The open application store and general openness of the platform attracts many technical users. Apple’s locked down store and seemingly never-ending hardware problems are turning off these same users. Android users are very happy with the product, and they are helping Android sell by word of mouth. Technical enthusiasts have steered other industries in the past, and Apple sees the tide shifting.

    Apple indeed fears Android, but their lawsuits will continue to turn off potential and existing customers. The tech world is rapidly putting them in the same category as SCO and the RIAA, both of which turned to the courts to save their businesses.

  10. Guy-

    And great appeal for those who like things to work. I think you forgot to mention that.

    -Gene

  11. Pokey-

    I guess we live in different worlds. What I see is that tech enthusiasts gravitate to Apple. Perhaps you are different, but those I encounter who pretend to be enthusiasts gravitate to products other than Apple. Increasingly patent attorneys and engineers are moving to Apple because the products work.

    The article is largely straight, but I do handle things different in the comments. Also much (perhaps most) of my writing is op-Ed, so I don’t pretend to play things straight when I have an opinion. Again, that is why I am not adverse to showing my true opinions and acknowledge posting from an iPhone, something that just wasn’t realistically possible with the Blackberry I had for a very short time.

    Cheers.

    Sent via iPhone.

  12. Brandon-

    You might not like Apple products but to pretend they are crap and those who buy them are suckers shows extreme intellectual dishonesty and suggests an agend behind the hatred.

    In my experience people who complain about the “suckers” who over pay are just jealous that they can’t afford to buy Apple products.

    Sent from iPhone :-)

  13. Both products work, Android slightly better. Apple’s works well but is overpriced and locked into one network. Edge: Android.

  14. I will just say that there is an irony about Apple being locked into only one network. As I understand it, AT&T were the only ones who would give Apple the freedom to create a smart phone as they wanted to. Verizon, for example, made demands that would have had the iphone be like the Blackberry and far less useful. So Apple chose AT&T and locked in an exclusive contract.

    Of course, the real question is whether Android is a copy of Apple, and the obvious answer is yes, it certainly appears to be a copy. Many might not like that you can protect an operating system or the function of a device apart from the device, but you can and it seems likely that HTC, and Google indirectly, will get stung. Sorry if that offends the anti-Apple folks out there. It just happens to be reality and I like to keep it real.

    -Gene

  15. I will just say that I don’t think the definition of patentable subject matter should be decided on the basis of gadget fandom.

    To the extent that Apple’s patents survive Bilski (which hopefully will be a legal issue and not an expiration issue), competitors shouldn’t be using their technology.

  16. IANAE-

    I agree, at least in part. The “fandom” issue, however, could become relevant under any 103 challenges. I think a strong argument could be made that the functionality is highly desirable, witness the long lines and pre-orders for the iPhone 4 and for the iPad. The post iPhone knock-offs that operate similarly and look nearly the same suggest copying of one sort or another, even if it is not found to be infringement. So the presence of Android after the iPhone and the demand in the market would suggest that whatever Apple came up with is not obvious.

    Wouldn’t you agree? Thoughts guys?

    -Gene

  17. Wow, I love all of the anti-apple comments. People are finally coming to their senses. Apple makes great products, but I have never been able to get over the fact that their PCs are so much more expensive than a comparable Dell. I have always used Microsoft software on Dell/Compaq PCs and have never had any major problems. Therefore, I don’t know why I would pay more for an Apple computer. And I am so sick of hearing people brag about their i-Phones … it gets old quickly. I’m glad i-Phone users LOVE their phones, but don’t they have anything better to talk about? Apparently not.

  18. Rick-

    Playing devils advocate, the same could be said for the anti-Apple folks. Don’t you have anything better to do than bash Apple?

    -Gene

  19. Gene-

    He didn’t bash Apple. He merely made an observation that Apple products tend to be more expensive than other similar products… which is entirely true.

    Also, guess which mobile device platform allowed folders first? or could customize their screen more than a couple backgrounds? Or (almost) the same method of “multitasking” (suspending apps that don’t need to be kept running, keeping only the “services”)? Or finally adding a flash to their camera? Or being able to purchase apps through ads? A method to bring up the last apps that were used?

    You’re telling me that it took a multi-billion dollar corporation (esp. the simpler stuff) with only 4 / 5 devices – with an affinity to user interface – couldn’t have designed and programmed the simpler features over the past 4 years? Someone’s worried a little about market share, I think.

    To be honest, there’s nothing any platform can do that another can’t. BlackBerry / Android / WebOS / i* / Symbian… they’re all equally capable, plus or minus a features or two. It now just depends on appearance, existing user base / development of a new one, and application developers.

  20. Dell, (or just about any other major PC builder) will waste your time walking you through pointless troubleshooting for a blue screen problem, then tell you it’s a Windows problem and direct you to Microsoft, at which point you’re now on the hook for more money.

    Apple products are more expensive because you’re also purchasing universal support. Apple controls the software and the hardware, which makes it easy to get support when things go not as planned.

    You know, like when your new iPhone 4 drops a call when you hold it… like a phone. Or when your iGadget’s battery fails. Again..

    Their computers? Rock solid, and definitely worth the money if you’re a developer making money from your trade. Otherwise, if all you’re doing is surfing the web, writing letters and playing games, Apple isn’t for you. Comparing systems based on specs, dollar-for-dollar, is a bit like comparing oranges to… well, apples.

  21. Lol, patent 6,282,646 seems to me to have been in existence for PCs for a very long time already. HOt-plugging monitors is nothing new, I just did it in fact. Apple is just feeling threatened, as it should. A fad is a fad, and it will end at some point. An iPhone is more of a fashion statement than a practical solution to a problem, and the equivalent of buying a huge cell phone when they just came out and making sure everyone noticed you. I am tired of all this “iWhatever” crap. How long are they going to use that stupid “i” in front of everything?! But even more annoying than that is the prefix being used by other companies for their crap. iPhone? iPad? Who decides these names? Fire those uncreative hacks and get some REAL device names!

  22. Someone-

    You should re-read the comment. There is clearly bashing. He asks whether Apple fans have anything better to do than cheer Apple. That is a “get a life” bash for sure. It is also the height of hypocrisy as well. Why wouldn’t the same logic apply to everyone? Why couldn’t it be said that those who bash those who are fans of Apple don’t have a life? It would seem to me to be a special kind of lack of life to (1) be upset that folks choose to pay more for Apple products that work; (2) be upset that Apple fans express their opinions on the Internet; and (3) find the time to complain about what creates pleasure for others.

    You say: “Someone’s worried a little about market share, I think.”

    Of course Apple is worried about market share. They rightfully have no desire to compete against their own products being sold by third parties who are infringers.

    You say: “To be honest, there’s nothing any platform can do that another can’t.”

    Obviously you have never owned a BlackBerry, or perhaps you have never owned an iPhone, not sure which. The BlackBerry has significant limitations and is clearly several generations older than the iPhone. They started or at least popularized the smart phone craze, but they stood still while Apple innovated. Now everyone wants a smart phone that works like the iPhone because that is what consumers want. Unfortunately for those companies and their stock holders Apple owns the patent rights, and they are going to lose. The only thing holding back the iPhone is AT&T, which ironically is the only reason the iPhone exists.

    -Gene

  23. AmbientSix-

    Do tell please. Can you educate us on how long this has been in existence for PCs?

    Would it happen to be 1998? Because it would have to be before that for you to have any argument since that is the earliest filing date the ’646 patent is entitled benefit from. So all your wonderful prior art that has been around for a very long time won’t do anything to stop this because we both know that hot swapping monitors has not been around for the last 12+ years. So while it might seem inventive to you that you have just done this, that is not the standard.

    While you are tired of the “iWhatever crap” I am tired of unknowledgeable individuals (such as yourself) opining about the patent system. If you are going to opine please inform yourself of reality and the law. Please also inform yourself about the functionality of the iPhone and technology in general.

    Also, if you are so tired of “iWhatever crap” why did you read the article? I would love to hear from anyone who is an Apple hater and can’t stand Apple. Why then do you seek out Apple articles on the Internet to read and then take the next step to comment? That must be a special kind of hate.

    -Gene

  24. Gene really takes this apple stuff personally doesn’t he?

    This is as much an HTC/Android article as an Apple article so don’t expect everyone to be backing the same horse..

  25. I always own at least a couple of Macs, at any given time. My oldest one is now 10 years old, and it still works great. Unfortunately, I can’t say the same thing about any PC i’ve ever encountered.
    http://www.generalpatent.com/media/videos/general-patent-gets-results-its-clients