War report: Apple beats Android in the courts

By Jonny Evans

"Those who cannot learn from history are doomed to repeat it."

George Santayana

Google's [GOOG] strategy of fighting Apple [AAPL] over Android in a global series of legal disputes led by proxy firms has always been utterly annoying, but now seems set to fail as the International Trade Commission (ITC) rejects HTC's claims Apple abused its patents.

[ABOVE: It isn't like Apple didn't warn you: "And boy have we patented it," said Jobs in 2007.]

Get paranoid, Android

This is a big deal, partly because HTC has been litigating against Apple using some patents passed across to it by Google. The ITC's initial determination (released last night) says that Apple's devices didn't violate HTC's patents.

Like every other member of the Android army, HTC has vowed to continue its fight:

"This is only one step of many in these legal proceedings," HTC general counsel Grace Lei said in a statement. "We are confident we have a strong case for the ITC appeals process and are fully prepared to protect our intellectual property."

HTC may say it is confident, but clearly things are unraveling.

-- In July the ITC gave a second initial determination in which it declared in favor of an Apple complaint against HTC. HTC has infringed Apple's patents, the ITC said.

Apple's Drop Bears

Samsung's attempts to take on Apple are faring no better. Courts worldwide are rejecting its challenges to Apple, and its devices have been banned from sale in some key territories.

Only last week in Australia the courts declared a judgment which could put Android device sales in that country in danger.

"After today's decision, I believe no company in the industry be able to launch any new Android-based touchscreen product in Australia anytime soon without incurring a high risk of another interim injunction," wrote patent expert and analyst, Florian Mueller on FOSS Patents.

With HTC floundering and Google management now engaged on prioritizing that company's $12 billion investment in Motorola Mobility, no surprise that other Android device manufacturers are beginning to feel insecure at the litigious and seemingly unsupported plight of people signing-up to use Google's so-called "free and open" mobile OS.

They are looking at diminishing margins, legal threats, and steep competition for sales in a market that seems to offer little reward, but great opportunity.

Samsung v Apple heading to Facetime

That's leading to further chinks in the armor, with Samsung and Apple seemingly returning to the negotiation table to agree a deal meaning the former firm will in future manufacture Apple's A6 chips for future iPads and iPhones.

Apple had been understood to be in discussion for supply of these with TSMC. It is not known if this means Samsung's production will be supplemental or instead of the replacement manufacturer.

In another sign of a pending detente, Samsung president and COO, Lee Zai Rong, attended Apple's invitation-only remembrance ceremony for Steve Jobs last weekend.

This has generated much discussion, and suggests teams on both Apple and Samsung's side of the fence are beginning to consider moving beyond the present Android battles.

No satisfaction

What's the likely outcome of the Android patent wars?

"An Australian court ruling published on Friday shows that Apple told Samsung that it owns a "thicket of patents" and would offer third parties a license to only "lower level patents"," writes FOSS Patents.

These filings also suggest Apple will defend those patents it has regarding tablet and smartphone interfaces and usability, and will only be prepared to license out what it calls 'lower level patents', and will insist that the features and functionality of those devices Apple does offer are not imitated freely.

In other words, "if you don't have an iPad, you don't have an iPad"...you'll have some other device that may look a little similar (but not too much), and lacks some of the key usability features that make the iPad so attractive.

Say what you like about Apple's use of patents, but it is pretty clear the company has fought hard to ensure that in the mobile space it avoids repeating mistakes made during the desktop GUI patent wars which cost it its leadership position at the birth of the PC.

Apple management have learned from their history. And, meanwhile, the company managed to sell four million iPhone 4S devices (with Siri) last weekend.

What are your thoughts? Speak up, I'm interested.

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Copyright © 2011 IDG Communications, Inc.

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