It's a difficult time to be making an Android phone, it appears. Just days after customs started blocking various HTC phones based on an ITC injunction due to some Apple patents, the ITC has also ruled in favor of Microsoft in a patent dispute with Motorola over Android phones. While there will be appeals and other such things, if this stands, and there is no settlement, Motorola's phones could also be blocked at the border by ITC injunction. Motorola, for its part, noted that Microsoft filed with the ITC over nine patents, and the ITC has only said that the phones violate one patent. Of course, since the ITC has only injunctive relief, it doesn't seem to much matter if it's one, two, six or nine -- the phone can be blocked. I am, once again, at a loss as to how this does any good. Keeping competing products from entering the market seems like the opposite of how you encourage innovation.

In one of many Apple patent fights concerning smartphones, it went after Taiwanese smartphone maker HTC in both the courts and using the infamous ITC loophole that gives the company two separate cracks and blocking competition using the same patents. The ITC ruled in Apple's favor late last year, issuing its customary injunction (the ITC can only issue injunctions blocking import, rather than any monetary award). HTC was given time to create a fix, but the injunction has apparently gone into effect, and it means that the newest HTC phones -- eagerly awaited by some -- are being held at the border by customs to make sure that allowing them into the country won't violate the ITC injunction. It's pretty sad that Apple doesn't appear to think that it can actually compete on the merits in the marketplace, but rather has to resort to this sort of protectionism. Similar to Apple's complaints against Samsung, I have to admit that all this has really done is increase my interest in both the HTC One X and the HTC Evo LTE. If a smartphone is so good that even Apple is scared to compete against it, well, that seems like a phone that might be worth having...

In the past, we've pointed out how many patent holders now get two entirely separate cracks at trying to get those they accuse of patent infringement to pay up. There's the regular court system and there's an entirely separate International Trade Commission (ITC) process, as well. Basically, the ITC can make rulings preventing importing infringing works, totally outside of the court system. And, of course, since so many things are made outside the US these days, this could create an effective injunction against those products in the entire US market. One of the key problems is that the ITC uses different standards than the court system to determine if such an injunction is an appropriate step.

With the massive patent thicket on smartphones, leading to a bunch of lawsuits, many are using both the court system and the ITC to try to force the other side to give in and just pay up. However, so far, it appears that the ITC is not playing along. We recently noted that the ITC indicated it was rejecting Nokia's claims that Apple's iPhone violated some of its patents, and now the ITC has indicated that it won't side with Apple in its claims against HTC and Nokia.

In other words: keep your silly patent pissing fight out of the ITC.

If the ITC keeps rejecting these attempts to stifle competition via the patent system, then hopefully companies will stop using this little loophole to get to extra bites of the (proverbial) apple.

Nokia, who used to absolutely dominate the mobile phone market, has definitely seen better days. The iPhone really took it by surprise and the company really hasn't done a particularly good job reacting to the rise of the smartphone market. So, like plenty of companies who once innovated, once it started losing in the market, it shifted to litigation. Just a week after the company's first ever quarterly loss, it sued Apple for patent infringement over the iPhone. It actually took two cracks at Apple in that it also used the ITC loophole to go after the company twice.

Of course, in true patentland fashion, when a big tech company sues another big tech company for patent infringement, patent nuclear war ensues, as Apple sued back claiming that Nokia infringed on its patents. While the various lawsuits are still ongoing, it appears that Nokia's first shot via the ITC loophole has been a big failure, as the judge has ruled that Apple didn't infringe at all. It's worth noting that many consider the ITC to also have a lower bar, so this might not bode well for Nokia's lawsuit. Of course, Apple's lawsuit against Nokia remains as well... meaning that this little attack on Apple could conceivably end very, very badly for Nokia.

Probably should have focused on innovating, huh?

Well, well, well. We've discussed recently how it seemed effectively impossible for any smartphone maker to survive the patent gantlet, as there are so many patents held by so many different parties, and they all seem to have recently started suing each other. The latest, sent in by a whole bunch of you (though Phillip was first) is that Apple is suing HTC, again both in the courts and using the ITC loophole. What's interesting here is that, despite Apple playing up the fact that it had over 200 patents on the iPhone, for the most part, it hadn't gone on the offensive with them. The recent patent lawsuits that Apple has been involved in have all been on the defensive side -- which we thought was a smart move for Apple. The fact that it's now going on the offensive on patents is unfortunate. It's usually a sign that a company is worried that it can't keep up with the competition.

With the news coming out that the US International Trade Commission (ITC) has agreed to investigate both RIM and Apple over patent claims brought by Kodak, it makes you wonder if we'll soon be able to have any smartphones at all. As you hopefully know the ITC process is a sneaky loophole used by patent holders to get two totally unrelated shots at putting the same company on trial for infringing on the same patents. There's the regular court process, and then there's the ITC, who can't fine companies, but can issue injunctions barring the import of the products. This process is regularly abused for anti-competitive purposes. Of course, there are other, similar charges that the ITC is reviewing as well, and it begins to make you wonder if any smartphone can actually "survive" this process.

Pretty much all smartphones are made outside of the US, so they can all be barred by the ITC, and with the technology in your average smartphone being covered by hundreds of patents, it's almost certain that every smartphone infringes on a slew of patents. Obviously, it's unlikely that anything will ever result in a full import ban on any particular phone -- the second that happened, the company would just give up and pay a ton of cash to make the complaining company go away -- but it does highlight what a wasteful process this is, and how it's taking good money away from actual innovation in smartphones and having it go towards stunts like this.

We've seen how Nokia's troubles in keeping up in the smartphone market have resulted in suddenly filing a whole bunch of patent lawsuits, including the big one against Apple over the iPhone. Of course, as usually happens in these types of situations, Apple fired back with a patent infringement lawsuit of its own against Nokia. Welcome to patent nuclear war.

And, of course, if you thought the battles would end there, you haven't been paying attention to how patent battles work these days. For years now, we've been pointing out that many patent holders actually get two cracks at companies over the same exact patents. They sue in the courts, and they use the ITC loophole to get a second crack, which could have even worse consequences. You see, the International Trade Commission is supposed to watch out for unfair trade practices. So many patent holders go to the ITC and claim that companies that infringe on patents are using unfair trade practices and should be barred from importing those goods into the US. Of course, the ITC could rely on the courts to determine if the products are actually infringing, but it does not. It decides for itself. And while the ITC cannot issue fines, it can issue an injunction barring the import of these products. With so many high tech products being manufactured overseas, this creates an effective injunction against selling many high tech products in the US... even as the Supreme Court has made clear that injunctions don't always make sense. But, the ITC is not bound by the Supreme Court on this and can do what it wants. A recent study has shown that this ITC loophole is frequently abused.

So, it's not at all surprising that (yes, indeed), Nokia has jumped in with both feet and has filed a complaint with the ITC as well over the Apple iPhone and its alleged infringement on Nokia patents. So now we have two totally seprate processes, either of which could conceivably bar Apple from selling iPhones in the US, just because Nokia's been too slow in coming up with its own iPhone competitor. That's not encouraging innovation at all. It's proactively trying to use the US government to slow it down.

Qualcomm has always been a strong supporter of the patent system, as it was the basis for much of its revenue over the past decade. However, lately, the company has been getting hit left and right by patent lawsuits against it. Last week, though, the company ended up with a few minor (and perhaps temporary) victories against opponents. First, the International Trade Commission tossed out a complaint from Nokia asking the ITC to ban the import of Qualcomm chips. Nokia had simply taken a page from Broadcom, who had successfully used the ITC loophole to get a second shot at Qualcomm over its patents. Given how often companies have been starting to use this loophole, it's nice to see that the ITC doesn't always rollover for patent holders.

In the meantime, speaking of Broadcom, we had noted last month that thanks to a Supreme Court ruling that raised the bar for declaring "willful" infringement of a patent, the judge in the Qualcomm-Broadcom suit had given Broadcom a choice. Either retry the case under the new rules, or drop the "willful" part and get less money from Qualcomm. Broadcom has now chosen the latter option, and will accept a smaller payout from Qualcomm for infringement. Of course, it's not all good news for Qualcomm. Nokia still has lawsuits going against Qualcomm, with one getting underway in the UK this week. Broadcom is still seeking the courts to rule for an injunction blocking the import of certain Qualcomm chips as well (even as the ITC is already helping out on that front). Once again, no one seems willing to explain why Broadcom gets to take two whacks at Qualcomm over the same exact issue. In the meantime, while it would be nice to think that these recent messy lawsuits would give Qualcomm a chance to rethink some of its beliefs about the patent system, somehow that seems unlikely to happen any time soon.

A few months ago, we pointed out that since the Supreme Court made it clear that patent injunctions were being used too often, many companies were starting to use a loophole. Rather than just going through the courts to get an injunction, they would go to the US International Trade Commission and ask it for an injunction against those they accused of patent infringement. While courts need to follow the lead of the Supreme Court, the ITC could make whatever decision it wanted on whether or not a particular product actually did infringe and whether or not an injunction should be granted. It gives patent holders a second shot, outside of the court system, to get an injunction. In fact, right after we discussed this, Broadcom used exactly that loophole to get an injunction against certain Qualcomm chips. Qualcomm has been fighting this injunction without much luck, and it seems to have encouraged others to try the same thing. Nokia and Qualcomm have been engaged in a rather vicious patent fight recently -- and suddenly Nokia has come up with a strategy of (you guessed it) asking the ITC to ban the import of Qualcomm chips for patent infringement. Wonder where that idea came from? The folks at the ITC might want to start staffing up in the division that has to review these patent injunction requests. It sounds like there's going to be plenty to do in the near future.