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12/20/2011
02:12 PM
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Apple's Patent Victory Over HTC/Android Shouldn't Inconvenience Users

HTC might be liable for patent infringement, but that doesn't mean HTC handsets will vanish overnight.

The latest patent squabble in the mobile world--Ho TC vs. Apple (or vice versa)--has ended in a mixed victory for both parties. It's also become a little clearer that most of these patent fights aren't likely to snatch existing devices from the hands of corporate users.

HTC and Apple have been at loggerheads over whether some of HTC's devices infringe on certain data-processing patents held by Apple. On Monday, the International Trade Commission sided in part with Apple and instituted an import ban on some of HTC's phones, starting in April of next year. (Nokia also was cited as an infringer in some of the patents, but settled separately back in June and set up a cross-licensing agreement.)

One of the infringing patents involves an Apple technology called data detectors, which allows an OS to recognize the presence of formatted data--phone numbers, email addresses--within a block of text. It also allows the user to take actions on that data; for instance, by dialing a detected phone number or firing off an email to a detected address. HTC was not, however, found to be infringing on another Apple patent (a "real-time signal processing system").

Patents that involve design or UI decisions can be worked around with varying degrees of pain. Infringing software typically can be fixed with an over-the-air update. But infringing hardware is thornier, depending on the timeframe of the ban for the offending device. In the current case, the ban against the infringing HTC phones goes into place on April 19, 2012.

That's time enough for HTC to change its designs and roll out a new version of the phone, which is precisely what they intend to do. As a result, existing HTC phone users aren't likely to feel much, if any, pain.

"The ongoing patent fights over Android are unlikely to impact current devices," says with Deborah Sweeney, CEO of MyCorporation Business Services and an IP lawyer based in Calabasas, Calif. "The commission's order applies to new phone imports and doesn't force HTC to pull existing devices off U.S. store shelves. Furthermore, HTC can import refurbished phones to fulfill warranties or insurance contracts through Dec. 19, 2013. Hence, customers can assume, at least based on the latest decision, that their current services should not be interrupted."

But what about future infringements? Other patent suits against Android are ongoing, and could have broader scope or more severe fallout. Are they likely to make people regret buying devices if they become the object of a legal tussle?

Sweeney's take is that it's growing less likely such a thing will happen. "Typically with [such] rulings, there is breathing room to implement the ruling. If it's changing software, removing it from devices, etc., typically the courts are reasonable in trying to give each party time to sufficiently implement."

The ITC's own documentation of the ban has wording to that effect: "...based on consideration of competitive conditions in the United States economy, the exclusion of articles subject to the order shall commence on April 19, 2012 to provide a transition period for U.S. carriers." This would seem to hint that handsets, as opposed to other potentially patent-infringing devices, have unique standing due to the number of other business parties involved (specifically, the cell carriers).

Sweeney also notes: "Leniency and leeway often depend on the severity of the infringement. Among other factors, one major point of considerations is 'knowingly infringing' upon another's patent. In such cases, courts can go so far as to issue a complete and immediate restraining order. However, in a situation like this [the current Apple/HTC fight], it has been hashed out in so many different iterations that it's unlikely to yield an immediate and wholesale cessation of a critical feature or substantial portion of the device."

Most Android-related patent suits are aimed at handset makers rather than Google directly. Because Android typically is customized heavily by handset makers, much of the responsibility for the final form Android takes on a given device falls to the maker of that device.

This doesn't mean Google isn't the target--only that it's often easier to attack someone who uses Google's technology (e.g., a handset maker) instead of attempting to go head-to-head against Google directly. One of the more direct patent suits against Google involves Android's Dalvik virtual machine subsystem. Oracle claims Dalvik infringes on seven patents it holds that apply to Java.

Even if Oracle successfully prosecutes a claim against Google, it probably won't mean Android handsets will vanish from the marketplace. End users can breathe a little easier. But Google and handset makers as a whole are far from being off the hook.

Based on Long Island, N.Y., Serdar is founding senior editor managing reviews at BYTE, the former open source technologies columnist for InformationWeek, and a regular contributor to many other information-technology publications. Follow him on Twitter as @syegulalp and email him at Serdar@BYTE.com.

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