Judge interprets '263 patent in Apple's favor in HTC Android appeal
United States Circuit Judge Richard A. Posner has issued an interpretation of Apple's '263 patent that is likely to result in a jury finding HTC (and Android in general) of infringement in the key "realtime API" case previously passed over by the ITC.
The '263 patent is very significant because it represents technology at the core of Android, rather than being a physical design or user interface feature that companies using Android can easily work around or remove.
An ITC Administrative Law Judge originally found HTC's Android products were infringing upon Apple's "realtime API" patent, but after his ruling the six member ITC Commission issued a final ruling on the matter that reversed the ALJ's finding and only held HTC to infringe upon Apple's less important "Data Detectors" patent, a feature HTC promised to remove from its products.
Apple appealed the ITC Commission's decision, which was based upon an argument by HTC that insisted the word "realtime" in the patent changed its meaning to the extent that Android could not be held in infringement of it.
HTC's line of reasoning in the case was described as "formalistic wordplay" by the original ALJ, and dismantled in detail by programmer and patent-issues journalist Florian Mueller of FOSS Patents last September.
Android's open Infringement
Apple didn't just claim infringement of its '263 patent by Android; it went further to draw a line between Apple's original development of the technology and Android's use of it at Google under the direction of the project's leading developer Andy Rubin.
Apple argued that Rubin "began his career at Apple in the early 1990s and worked as a low-level engineer specifically reporting to the inventors of the '263 [realtime API] patent at the exact time their invention was being conceived and developed."
Mueller now reports that Apple's appeal is being taken seriously by the new appellate judge, who has issued an order clarifying, "I therefore construe 'realtime application program interface' in claim 1 of the '263 patent to mean an 'API that allows realtime interaction between two or more sub-systems," the interpretation Apple proposed.
Mueller notes that "a jury is very likely to find Android to infringe the patent based on that construction but much less likely to deem the patent invalid." He previously noted that Andy Rubin's involvement could also give Apple grounds for claiming willful infringement.
In Apple's patent appeal of the ITC's HTC decision with the Court of Appeals for the Federal Circuit, Mueller states that Judge Posner's interpretation "will clearly bear more psychological weight with the CAFC than the final ITC ruling," and adds that if the appeals court "also agrees to interpret the '263 patent in a technically logical way, Android may face a major problem."
Comments
It really seems that Google decided to move forward with releasing Android at lightspeed, d@mned the consequences .. they would deal with them later.
First ripping of Sun^H^H^HOracle/Java -- and then ripping off Apple.
If Google were sticking to their '"Don't Be Evil" mantra, they would have taken their time and actually developed a new product and not based Android on theft.
I am SO GLAD I dumped my Google stock in early-2010. Either Google has lost their way, or unfortunately, L. Paige might be another B. Gates. Google, have some respect for the law, have some respect for your employees -- you have good talent and plenty of resources -- you don't need to steal.
:shakes head: ... As an ex-Google fan, I'm pretty disappointed by the last couple of years.
Talk about a possible exploding bomb for Android.
At the risk of geekdad pretending not to know what the word 'context' means, I'll say that between this and Oracle (and with a few more wins on the Apple side), we just might have a case against Google itself coming up here?
The interesting part is the judge. If you could have any judge agree with your position it would be Posner. The guy is a living legend.
I still laugh at idiots who think Rubin working for Apple has nothing to do with this patent and possible infringement by Android.
At the risk of geekdad pretending not to know what the word 'context' means, I'll say that between this and Oracle (and with a few more wins on the Apple side), we just might have a case against Google itself coming up here?
I think Apple needs to continue to take the fight to the handset makers. They can sue Moto maybe but suing Google directly will be much more difficult since they don't sell anything that can be blocked by the ITC aside from Nexus. Oracle on the other hand would only be looking for damages and licensing fees which ultimately doesn't help Apple all that much.
Andy Rubin is like Johnny Appleseed.
*GASP*
Google will be working on their own ePub creator, then!
I think Apple needs to continue to take the fight to the handset makers. They can sue Moto maybe but suing Google directly will be much more difficult since they don't sell anything that can be blocked by the ITC aside from Nexus. Oracle on the other hand would only be looking for damages and licensing fees which ultimately doesn't help Apple all that much.
The point of taking patent cases to the ITC is that it can block products relatively quickly, rather than fighting for years and getting either nothing or a vindication ruling 4 years later that doesn't matter anymore.
That's why Apple (and Motorola, Microsoft, etc) is taking cases to the ITC. But Apple is also suing in regular courts, and once it builds up enough wins (especially important ones like this 263 patent), it could sue Google for damages, if Google doesn't give up on copying Apple's stuff.
It actually seems more likely that Oracle will win enough of a case against Google to make the future of Android a dead end, converting it either to Java, or alternatively, Google backing away from a JVM design and jumping to phones that run web apps like the Chrome OS.
But Apple is also suing in regular courts, and once it builds up enough wins (especially important ones like this 263 patent), it could sue Google for damages, if Google doesn't give up on copying Apple's stuff.
They should have had at least one win by now. So far it's only a few preliminary decisions that have both given and taken away. Apparently the blatant copying is nowhere near as cut-and-dried as some have made it out to be.
I think Apple needs to continue to take the fight to the handset makers. They can sue Moto maybe but suing Google directly will be much more difficult since they don't sell anything that can be blocked by the ITC aside from Nexus.
Still, there is nothing to prevent an injunction against the distribution of Android itself.
But what about the essential UI innovations that define the iPhone, and also made Android so successful and interchangeable with the Apple's original products?
I mean multi-touch gestures, inertial scrolling, page transitions?
They covered by Apple's IP, aren't they? If so why can't they win based on these patents?
Are they considered prior art, invalid?
Still, there is nothing to prevent an injunction against the distribution of Android itself.
I don't see how Apple could ask the courts to do that since Android is just code and free code at that. Apple can sue the handset makers because that is where the implementation of design patents is infringed upon. Oracle on the other hand has alleged that Google lifted some of their code so they could possibly be in a position to prevent the distribution of Android. Except that is not what Oracle would want. They would surely prefer royalties since they don't have a competing product in the marketplace.
But Apple is also suing in regular courts, and once it builds up enough wins (especially important ones like this 263 patent), it could sue Google for damages, if Google doesn't give up on copying Apple's stuff.
They should have had at least one win by now. So far it's only a few preliminary decisions that have both given and taken away. Apparently the blatant copying is nowhere near as cut-and-dried as some have made it out to be.
Are you qualified to say they "should" have at least one win by now? I'm no patent attorney, and I'm guessing you aren't either. This shit doesn't happen quickly, either way. And learn how to use the quote function without screwing it up.
I don't see how Apple could ask the courts to do that since Android is just code and free code at that. Apple can sue the handset makers because that is where the implementation of design patents is infringed upon. Oracle on the other hand has alleged that Google lifted some of their code so they could possibly be in a position to prevent the distribution of Android. Except that is not what Oracle would want. They would surely prefer royalties since they don't have a competing product in the marketplace.
I think it would be easy for a court to tell Google to stop distributing Android, if the code that is being distributed infringes Apple patents.
I think it would be easy for a court to tell Google to stop distributing Android, if the code that is being distributed infringes Apple patents.
The code can only infringe on a patent if the code itself was copied, not the implementation of a concept. If the code is different then there is no infringement, that is until it is implemented and only then does the look and feel, design and functionality become an issue as I believe is the case of patent 263. The code itself is not an infringement unless it was stolen, but I don't think that is what Apple is arguing.
I think the bigger question is Google going to help their licensees with their legal defenses as Apple continues to sue them?