Last week an ITC judge found that HTC had infringed two Apple patents in its Android phones. In a worst case scenario this could result in a import ban against Android-based HTC products entering the US.

According to patent law expert, Florian Mueller, the USS International Trade Commission (ITC) is becoming increasingly popular as a patent enforcement agency, especially but not exclusively in connection with smartphones, because it can order import bans against products infringing intellectual property rights.

The decision made on 15 July was an initial determination by an administrative law judge (ALJ) who was looking into ten infringements alleged against HTC by Apple and can also be interpreted as finding the HTC hasn't infringed 8 of the 10 Apple patents specified in the complaint filed in March. A final decision about this set of complaints is expected in December when it be reviewed by the 6-member Commission.

At an earlier stage in this process ITC staff felt that there wasn't a single valid one that HTC infringed and perhaps prompted by impending failure Apple has recently asserted infringements of a further 5 patents (listed in another FOSS Patents blog) in a second complaint to the ITC. Apple also has three federal lawsuits against HTC with a total of 16 patents involved.

The two patents that the ALJ has decided that HTC has infringed are:

• U.S. Patent No. 5,946,647 on a "system and method for performing an action on a structure in computer-generated data" (in its complaint, Apple provides examples such as the recognition of "phone numbers, post-office addresses and dates" and the ability to perform "related actions with that data"; one example is that "the system may receive data that includes a phone number, highlight it for a user, and then, in response to a user's interaction with the highlighted text, offer the user the choice of making a phone call to the number")

• U.S. Patent No. 6,343,263 on a "real-time signal processing system for serially transmitted data" (while this sounds like a pure hardware patent, there are various references in it to logical connections, drivers, programs; in its complaint, Apple said that this patent "relates generally to providing programming abstraction layers for real-time processing applications")

Commenting on their importance Florian Mueller notes that they appear to be at the core of Android and infringed by all Android devices. Mueller has prepared detailed tables that show how Android infringes them.

Although HTC has announced its intention to appeal or to find alternatives solutions. But Mueller asks:

"But can those patents really be worked around? Standing in front of the Great Wall of China, you can also vow to walk around it. That doesn't mean it's a viable option."

So just when we were starting to be more optimistic about the future of Android vis-a-vis Oracle v Google, Apple v Android seems a far more serious problem.

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