HTC hasn't had much luck lately against Apple on the patent litigation front, and it looks like Cupertino wants to keep it that way. Apple notified the ITC today that it has filed claims in Virginia federal court alleging that HTC has engaged in various anti-competitive practices relating to the assertion of two standards-essential patents against Apple. The filing alleges seven claims of misconduct by HTC, including fraud and conspiracy to commit fraud, conspiracy, and various federal and state antitrust violations. Given the sheer number of patents that have been thrown around by these companies in their ongoing patent battle, Apple's attack on just two patents may seem unimportant at first glance. In some circumstances that likely would be true, but in this one it could be a very big deal, especially given HTC's limited patent portfolio — at least compared to the number of patents Apple owns in mobile device technologies. Patent cases are usually decided by a persistant barrage of body blows, not dramatic knockout punches, and HTC has taken quite a few shots to the ribs lately.
In many ways it's been HTC versus the ITC
Much of the bad news for HTC started coming in last November when the full panel of the ITC overturned an initial ruling that Apple had infringed two patents owned by S3 Graphics. That was bad news for HTC because it was in the process of buying S3, a move it proclaimed would bolster its patent portfolio and provide leverage. From there, things got even worse. Namely, Apple won an ITC ban on devices relating to infringement of Apple's "data tapping" patent in December that resulted in an import delay for HTC One X and Evo 4G LTE phones last month. While US Customs later determined that those devices were in compliance with the ITC ruling and allowed them into the US, Apple has since filed a new complaint asking the ITC to ultimately rule that the devices do still infringe its patent. That's a lot of action, but it doesn't stop there.
Eight patents are better than one
HTC's infringement claims against Apple at the ITC originally included eight patents, but may end up as an anemic case with just one remaining. Just last week we learned that a judge at the ITC granted Apple's motion to dismiss five of those eight patents — patents acquired from Google in a deal that the ITC determined, at least for now, lacked the requisite transferrable rights needed for HTC to assert them against Apple. That left just three patents in the case for HTC.
If a federal judge does agree with Apple's newest contention that two of those last three patents are being wrongfully asserted as standards-essential patents, HTC's case could take yet another significant blow. That's not to say that a ruling in Apple's favor is inevitable, but there's no denying that the use of standards patents is a controversial strategy that courts and government agencies have become increasingly concerned over. It will certainly be interesting to see what the court in Virginia thinks. We'll keep you updated.