Apple Claims HTC Blew Off Enforcement Order

WASHINGTON (CN) - HTC imports and sells Android phones that use software the International Trade Commission has found infringe on Apple patents, Apple claims in an emergency enforcement complaint to the ITC.

Apple claims that Taiwan-based HTC is violating a limited exclusion order the ITC issued in December 2011, prohibiting HTC and its U.S. subsidiaries from importing or selling the devices using the infringing software after April 19.

HTC was allowed to continue to import refurbished devices that use the software, to satisfy warranty complaints of existing customers.

The software detects information such as phone numbers and addresses on websites or in emails and allows users to store the information or select it to initiate a phone call or mapping function.

Apple claims that an HTC spokesman said that his company had been "found to infringe the interface, not the functionality," and that it could "merely alter the feature" and "leave the core functionality intact."

Apple cited examples of HTC phones, purchased after the April 19 exclusion date, which retain the functionality at the core of Apple's patent complaint.

HTC claimed during the original investigation that it did not maintain large inventories of the phones, but Apple cited comments on the HTC website, after April 19, that some shipments of the infringing devices reached the U.S. before the exclusion date but that an extended Customs review meant the company "could deplete its inventories in the U.S."

Apple says the comments suggest HTC that had more inventory than it acknowledged and that it is still selling the devices in violation of the order.

Apple seeks an ITC enforcement proceeding and force HTC to prove that the devices it imports and sells do not violate the December order. It also wants the ITC to issue a cease and desist order with explicit instructions banning the sale, advertisement or distribution of all HTC products running the Android operating system, and an exclusion order mandating they be detained if HTC tries to import more.

In the alternative, Apple said, HTC should have to post a bond equal to 100 percent of the retail value of each imported device while the ITC conducts the enforcement proceeding.

Apple is represented before the ITC by Gregory Arovas, with Kirkland & Ellis of New York City.

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