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Apple turns the flamethrower on Android

If you tolerate this your handset will be next

By Bill Ray, 3 Mar 2010

Analysis The details of Apple's patent offensive are now public, and it's clear that while HTC is the target, it's Google's Android that has got Cupertino so annoyed.

The patents on which Apple is claiming infringement include obvious things such as the use of a gesture to unlock and rotate the screen based on device orientation, but they also cover deeper concepts such as thread-to-thread communication and interactions between an object-orientated GUI and a procedurally developed OS.

The case has been filed in Delaware, and with the US International Trade Commission (ITC); the latter in the hope of getting a ban on US imports of infringing equipment. The filings don't cover the same portfolio: nine patents are referenced in the Delaware filing, while ten different patents are cited in the submission to the ITC. But if even a few of the patents are upheld, then the way that non-Apple users interact with their phones is going to have to change, with computer users following soon afterwards.

The ITC filing starts out with a page saying how wonderful Apple is - backed up with three later pages explaining what a great American company Apple is - which is contrasted with a single paragraph describing HTC as a manufacturer, importer and seller of mobile communications devices: setting the stage for our plucky American innovator to be ambushed from abroad.

We then get down to the patents, and the attested infringements. Many of these are software processes, and thus only infringed when someone runs the software. That (arguably) clears Google, even HTC is accused of "inducing the infringement of these patents by end users of their products", though HTC's sale of devices loaded with patent-infringing software (Android) implicates the company.

The patents themselves cover the use of a proxy object to communicate between threads, enabling an object-orientated GUI to access OS resources even if the OS isn't OO, packaging a media object with a URL of the codec needed to play it back and even detecting a phone number in an email (or elsewhere) so the user can tap it to dial.

Some of these patents are pretty old: that last example dates from 1996 and will expire in another six years, while the following only has another four years to run but would seem, at a glance, to cover any event-driving environment at all:

A system in which a software module called an event consumer can indicate an interest in receiving notifications about a specific set of events, and it provides an architecture for efficiently providing notifications to the [event] consumer

Given that most of the patents cover processes used by software, one might hope that Europe would be outside their influence, but the experts tell us that this isn't the case: if the patent makes the computer do something it couldn't do before, then the patent can be just as valid on this side of the pond.

The Delaware filing is a little more clear-cut: patents covering such things as the use of a gesture (such as sliding a finger) to unlock the handset, smooth animations between user screens, stepping down the power on a "digital camera device" and sensing the orientation of the device. There are some more technical ones covering an OO graphics library and improved signal processing, and all of them are pretty technical in their details.

Digging in the wrong place?

The case will probably come down to those details, as HTC (watched by everyone else) tries to squirm around the patents and probably ends up handing over a significant sum of money following the best part of a decade of action. Apple is demanding triple damages for knowing infringement, along with all its fees - which is, no doubt, one of the reasons Cupertino chose to fight this battle in America.

There's also the fact that an American innovator facing a Taiwanese adversary is going to get local sympathy, though why Apple has selected Delaware (rather than the even-more-patentee-friendly Texas) remains a mystery. Apple could have launched the case in Europe, but that would have required legal action in each country, while going to Taiwan would be taking the action to the opposition's home ground.

We can speculate as to why Apple has selected HTC rather than Motorola or even Google itself (who, as sales agent for the Nexus One, is equally in breach). Google has a lot of money; it's also an American company so there'd be no local sympathy, but it's the money and the patent pot that will have pushed Apple to select a weaker target.

Given the number of patents filed by Google, Apple is almost certainly infringing some of them, which would make for a bloody war unless they already have some sort of signed licence agreement in place. Such an agreement is likely to exist, and would muddy the legal waters if the companies came to blows. The same problem probably applies to Motorola: Apple would swiftly find itself on the receiving end of a responding claim if it tackled either of those companies, so HTC is a much softer target.

Not that HTC doesn't innovate: the company was responsible for some of the first Windows Mobile handsets; including the Xda and Xda II, and innovated in remarkable ways to get the handsets to work. But HTC hasn't the history, or the culture, to hold a huge patent portfolio. A quick look at the EU patent records shows that HTC only has 127 patents, some of which are clearly not computing related, while a search for "Apple" lists 1,453 patents.

Apple is targeting HTC, in the USA, but the patents on which the claims are based could be applied to any Android handset in the world, and almost certainly (in part at least) to any other smart phone platform. Some of the patents specify a device with a built-in screen, or battery, or touch-sensitivity, but some are generic enough to be applied to any computing environment.

The case will take years to resolve, but that's no bad thing for Apple: manufacturers are going to be hesitant to create Android handsets when an Apple victory could put them out of business, a long drawn-out case could threaten the future of Android just as much as an Apple victory.

The winners, therefore, will likely be Symbian, RIM and Microsoft, as long as Symbian can depend on Nokia's stack of patents for defence. Microsoft has its own stack with which Apple wouldn't want to tangle, but anyone less well equipped would do well to get out of the mobile business while they can. ®

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