updated 10:50 pm EDT, Tue July 10, 2012
Possibility of success with adding co-defendants remote
HTC's last-ditch effort to apply borrowed patents from from Google to help fight against Apple's infringement battle was shot down by the US International Trade Commission today. The appeal was made after Administrative Law Judge Thomas Pender concluded that HTC failed to acquire all the rights in the relevant patents in mid-June. The six-member review commission agreed, and strongly suggested the addition of more co-complainants to fix the deficiency wouldn't fix the problem.
At a minimum, HTC would have to directly add Google as a plaintiff, firing off a direct Apple-Google conflict in court (other than the Motorola complaint which pre-dates Google's acquisition of Motorola). Both the computer manufacturer and search engine giant seem reticent to directly attack each other in court, though many of the lawsuits involve Android patent infringements which are fought through proxies like Samsung or Motorola. Given the nature of the patents "rented" to HTC, the possibility remains that the Open Handset Alliance would have to have a larger presence in the court as well.
The commission notes in the filing that it "has not taken a position whether such other persons would have standing [...] and, if they do, whether it would be appropriate to join them at this stage of the investigation in view of, inter alia, HTC's delay in producing the Purchase Agreement," seemingly a tacit disapproval of HTC adding more defendants in an attempt to validate the defense approach and the delays in providing patent-acquisition documentation.
During the pre-trial process, HTC delayed producing documents for five months about the nature of the five patents given to it by Google to assert against Apple. The commission notice reports that "HTC included a copy of the Assignment with the Amended Complaint, but did not include the Purchase Agreement, even though the Assignment expressly stated that it was subject to the Purchase Agreement." The USITC's report found that "HTC continues to withhold, on the basis of privilege and work product protection, most of the documents and correspondence surrounding the Purchase Agreement" even today.
According to an analysis detailed by Florian Mueller, Apple claims that Google's patents on loan to HTC were only made available for the smartphone maker to sue Apple, and the key rights for patent use are retained by Google. ITC staffers agree with this interpretation, and according to Judge Pender's summary they are "nothing more than a creative attempt to thread the needle of legal precedent so as to confer standing on HTC to assert Google's patents." Furthermore, the patent usage clauses are so obfuscated by terms and conditions, that it is impractical for HTC to use them for anything other than litigation.