Thanks to Apple’s flawed litigation strategy, HTC has nothing to fear until March 2013 (in the US)

“Litigation is full of imponderabilities and surprises, especially in the United States, where the ITC increasingly appears to be a very difficult forum for smartphone patent holders and district court cases involve layperson juries as triers of deeply technical issues,” Florian Mueller writes for FOSS Patents.

“But even if litigants can never control their destiny, there are important ways in which smart tactics, combined with the first-mover advantage, can significantly influence the probabilities of different outcomes,” Mueller writes. “And in this respect, Apple made a number of poor choices over the last two years that increasingly produce undesirable effects. In general, it appears that Apple got better. It probably learned from mistakes, and it hired more and better lawyers, both internally and externally.”

Mueller writes, “However, some of what went wrong in the past has effects that are irreversible at least in the near term.”

Read more in the full article here.


    1. I think ineffective is a better description. “Don’t bring a knife to a gun fight.” In patent law you get the best justice you can afford.

    1. That’s the crazy part – lawyers are infamous for taking what worked for Plaintiff/Defendant A and copying it for the next 30 clients. It doesn’t seem like Apple really thought out its strategy here, almost going into court blind.

  1. There are a couple of important parts to his analysis:

    1. The smartphone litigation/complaints through the ITC were untested at the time Apple started filing complaints, and the ITC has proven to be significantly influenced by political arguments and justifications for its own internal efficiencies than necessarily treating each complaint with the thoroughness it should.

    2. Apple didn’t seem to have a fully-developed strategy for filing complaints, taking each conflict on a case-by-case basis. This created many legal inefficiencies and disadvantages which could have been avoided.

    3. Apple has gone too much after softer, ethereal claims like “trade dress” and “trade secrets” rather than hard, confirmed technologies like patents.

    4. Apple has tried too often for preliminary injunctions, which frankly are difficult to obtain and judges really hate granting them, because they are done pre-trial and are based on claims that money can’t make the victim whole. In this arena, that is an incredibly difficult, near impossible argument to make.

    Looking at things as a whole, it really seems as if Apple failed to properly prepare for a litigation war. My guess is Apple hoped to avoid litigation by using its leverage and trying to negotiate with the HTCs of the world. However, what Apple wanted was for HTC, Samsung, Motorola, etc. to stop copying iOS. That will never happen because Google makes Android, and Google will keep doing what it wants because it is not threatened by Apple suing the handset makers.

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