updated 09:15 pm EDT, Mon June 25, 2012
HTC claims Gmail Android libraries at fault for infringement
Following Apple's contention that 28 additional smartphone manufacturer HTC's devices violate the "data tapping" patent that Apple first filed with the ITC about in 2010, HTC has now accused Apple of extending the reach of the complaint, and a full-blown new investigation was required to validate or refute Apple's claim. Apple clarified its position in a reply to the court, and in doing so fine-tuned the claims of the original complaint, making it clear that the "data tapping" patent was not only applicable to single-click actions as HTC claims, but also to multiple actions, such as a contextual menu popup, in a single tappable link.
Apple filed the original suit in the US District Court of Delaware, and the ITC complaint in March 2010. Most of Apple's ITC claims were rejected, but the "data tapping" complaint remains, and can potentially be applied against HTCs entire Android phone line rather than just a handful of devices. Apple's explanation letter from last week adds new devices to the complaint, with the justification that they all violate the same patent, knowingly, even after HTC was given the chance to modify products to be non-infringing.
Apple's newly-filed documents include more detailed screenshots than in the earlier filings. The added data substantiates Apple's position that HTC's new devices developed and released since the original complaint in 2010 still link multiple actions to detected data structures, popping up a contextual menu on a longer press.
Some frank language is also included in the letter from Apple. Apple's reply said that "HTC's misstatements here provide further support for Apple’s request for relief and temporary emergency action. As set forth in its enforcement complaint, Apple is concerned that these misstatements formed the basis for U.S. Customs and Border Protection's apparent determination not to enforce the [import ban] and exclude HTC’s new Android Products."
"That is, if HTC is now telling the Commission that its Android Products contain functionality that 'links only a single action to a detected structure,' Apple can fairly assume that HTC told Customs the same thing, despite the incontrovertible showing in Apple’s enforcement complaint that HTC's representation is wrong." Apple's attorneys said. "Thus, HTC's factually erroneous excuse for continued importation of products covered by the LEO bolsters the necessity for emergency relief."
Besides just deceit and disingenuousness in HTC's communications, Apple also addresses HTC's prolific release schedule, and calls the manufacturer to task for continuing to violate asserted patents. Apple's filing states that it found that "That HTC’s current products may bear different names, or have updated or modified hardware or software, is of no moment; they run the Android platform that contains functionality found to infringe the ‘647 patent."
HTC has always stated that it sees "data tapping" as a little-used feature and characterized it as insignificant to remove and replace, but oddly has not done so as of yet. Rather than request an advisory opinion from the ITC in regards to Apple's complaint extension letter from last week, HTC has chosen to import the devices Apple has named into the US without alterations, even after having been given four months to modify the products so as to be non-infringing. HTC's position is that "[t]here is no requirement -- as Apple implies -- that HTC request an advisory opinion from the Commission prior to importing non-infringing products." The statement is factually correct, but politically charged.
In the not-too-distant future, HTC has one offensive and three defensive cases pending hearing with the ITC. According to patent analyst Florian Mueller, HTC has taken a risky route and risks antagonizing the ITC with this move. If HTC had removed the data tapping feature, or at least restructured it, then the new products would be non-infringing. Mueller says he believes that "HTC's decision to just go ahead and import products that raise such questions was, to put it mildly, brash."
Mueller also addresses Google's "silent partner" role in the Apple-HTC case. The Gmail product contains the "linkify" source code that HTC uses for its Android implementation of the data-tapping feature. HTC claims that they do not have the source code for this particular Android library, but even if this claim is to be believed, product infringement generated by another entity's code remains infringement.
What Google stands to gain from this isn't entirely clear, nor are the motivations behind its actions. Google "loaned" HTC five patents to assert against Apple, and they were dismissed by the judge out of hand. Motorola Mobile is an independently-operating arm of Google, and it and HTC operate in similar market circles both using Android, so it isn't in Google's best interest to alter the Android code base on behalf of HTC to remedy the patent complaint.
However, if the code is again found to be more widely infringing, it provides Apple with more ammunition to go after other Android device makers and even Google itself. A follow-up hearing on the ITC letter exchanges over the last week has not been scheduled.