By Harry McCracken | Saturday, July 16, 2011 at 9:04 am
On Friday, Apple won a round in its court battle against Taiwanese phone maker HTC, when an International Trade Commission judge ruled that HTC’s Android handsets violate two Apple patents. HTC is appealing the judgement.
My two favorite tech/law bloggers are FOSS Patents’ Florian Mueller and This is My Next’s Nilay Patel. Mueller thinks this court decision could be a big deal:
I have looked at those patents before and they appear to be very fundamental. They are very likely to be infringed by code that is at the core of Android. It’s telling that those two patents are also at issue between Apple and Motorola (and the ‘263 patent was also used by Apple against Nokia). A while after Apple started suing HTC, Motorola filed a declaratory judgment action against a dozen Apple patents including those two. Apple then counterclaimed by asking the court to determine that those patents are valid and infringed by Motorola. So the relevance of this goes way beyond HTC!
Between Apple and Oracle’s court cases and Microsoft’s, um, nice-guy strategy of “letting” Android handset makers pay a licensing fee to avoid getting sued–although it is suing Barnes & Noble over the Nook–Android is the Joe Btfsplk of mobile operating systems. It may be wildly popular, but it’s also got a little cloud hovering over its head.
I’m no lawyer, so I’m in a lousy position to guess at how this might all sort out. Certain Android phones might have to be pulled from the market; Android might require feature adjustments to remove patent-violating aspects; Google and/or phone manufacturers might have to fork over large amounts of money to patent owners. But when I think of Apple suing its smartphone competition, I think of a famous patent war I wrote about last month: Polaroid’s court case against Kodak over the latter’s instant cameras. Polaroid’s victory was decisive–Kodak had to pull its cameras and film from the market. It was also futile. Polaroid moved more product and made more money when Kodak was in the game than it did after forcing that company out of the market.
There’s no scenario under which Android simply ceases to exist–at worst, it might have to be rejiggered in ways that would make it less iPhone-like and possibly less appealing. I still can’t help thinking that Android’s success is ultimately good for Apple, not a threat. Companies that are a little scared have a far better record of flourishing over the long haul than those who seemingly have comfortable monopolies on something.