Android's latest indirect legal tussle to come to a head, a patent suit between HTC and Apple, was ruled on last week by the US ITC (Court of International Trade) - finding the Taiwanese manufacture liable for two counts of patent infringement. This news has spread like wildfire through every corner of the tech blog world. But is there really anything that's changed right now (or even in the near future) because of the outcome of this suit? Not really, no. Even the long-term, worst-case-scenario implications aren't exactly terrifying - and here's why.

Appeals Process

As many sites have pointed out, HTC has vowed to appeal the ruling of the ITC. They will likely make that filing in the next few weeks, at which point the case will be docketed into the United States Court Of Appeals for the Federal Circuit in Washington D.C. This is the only court HTC may appeal to, and the Federal Circuit is one busy court. If HTC loses again, their only recourse would be the U.S. Supreme Court, which is very unlikely to hear a patent case unless a genuine question about the applicable law has been raised.

Now, the appeals process actually takes significantly less time than the initial trial. Some have speculated that the 15 months the ITC took in deciding the original case would be a benchmark for an appellate hearing, but this isn't set in stone. Appellate cases are largely dependent on the caseload of the court hearing them, rather than the complexity of the issues - because on appeal, the only arguments that can be brought forward to challenge the judgment of the lower court are ones that are ones HTC previously raised. Essentially, courts of appeals decide whether or not a lower judge was right or wrong - tying the hands of the parties involved by limiting them to bringing up very specific issues related to the outcome of the previous hearing.

This means the trial process is a lot faster, generally speaking. Getting into court may take a while - but we'll see when the Federal Circuit dockets HTC's appeal for. The appeal could very well not be heard until 2012, but I'm not familiar with the current scheduling backlog that particular court faces.

Either way, it's going to be a while before HTC, even in the event of a relatively quick appellate proceeding, has to "face the music" and deal with this infringement issue.

Import Or Sale Ban: It's Not Going To Happen - Ever

No court is going to ban the import or sale of HTC's phones in the United States for infringing two patents. It is simply not going to happen. Anyone who tells you otherwise is just trying to make the situation sound much scarier than it is, or will ever be. Even if a court were to, for some inexplicable and utterly absurd reason, order such an injunction, HTC's appeal and a subsequent motion to put a hold on that injunction would prevent it from being enforced. At that point, talks would commence for patent licensing royalties, and the injunction would never see the light of day.

I personally get rather tired of the endless speculation proffered up by many that an injunction "could" ban the sale and import of Android phones - whether they be Samsung or HTC - in the United States. Injunctions like that may only be issued by courts as judgments when there is no other adequate remedy at law for the injured party. In patent infringement, injunctions rarely come up unless the party infringing is doing so willfully and repeatedly even when the trial has, or has nearly, come to an end.

HTC isn't stupid - if they take the case on appeal and it becomes clear that the judge isn't sympathetic, they'll settle. Any phone manufactured before the date of the final judgment is considered a past infringement (unless HTC attempts to purposefully "ramp up" production in anticipation of such a ruling - in which case it's a whole different ball game) - all of which can be compensated through monetary damages. Future infringement would be barred by an order enjoining HTC from committing such acts, but there would be no "import ban." It just doesn't happen, not in a case where the merits of the infringement arguments are very clearly at issue.

Worst case scenario, HTC is forced to kiss and make up with Apple, write a fat check, and sign a royalty agreement.

Royalties?! Gasp!

HTC already pays Android royalties to Microsoft - and they don't seem to be cutting into the company's record-setting profits too much. Another royalty agreement wouldn't be a welcome addition to HTC's balance sheets, but something tells me it wouldn't be the end of Android, either. Companies license software and technology all the time, a royalty agreement isn't a death knell - it's part of business.

Apple wouldn't demand an amount that could actually hurt HTC's sales - Apple wants HTC to sell all those wonderful Android phones, as every handset sold would just be another couple of bucks under Steve Jobs' mattress.

Alternative Options

HTC does have alternatives up its sleeve. Namely, it could stop infringing on the patents in question. Whether or not this is really possible given the way the Android OS functions, I'm not sure. I haven't looked at the patents in question very closely, and I'm not a patent lawyer or a programmer - I couldn't tell you if HTC would be able to code its way around Apple's intellectual property.

But they seem to think it's a distinct possibility:

"As a leading smartphone innovator for more than a decade, we develop and acquire technology in many areas and strongly believe we have alternative solutions in place for the issues raised by Apple"


That could very well just be puffery - it's impossible to know exactly how confident HTC is in that statement, as it's one that is more than anything else meant to scare Apple and downplay the situation to investors. But who knows, it might be true - HTC could be furiously working away at methods to navigate around Apple's patent-minefield.

See? Not Scary

I hope this has cleared up the situation for some of you, as there's a lot of speculation and hyperbole being bandied about regarding the ITC ruling. While it's true that ITC rulings are rarely overturned, it's equally true that there's no reason for Android fans, developers, and hat-wearing enthusiasts to worry about it in the short term.

Even out on the horizon, a ruling in Apple's favor wouldn't spell doom for Android or HTC. Sure, it'd be a financial impediment - but in all likelihood a minor one given Android's explosive growth and ever-increasing list of OEM partners.