On Dec 19, 2011, the US International Trade Commission (ITC) ruled in Apple v HTC. In the original complaint, Apple had claimed that HTC (currently the largest vendor of smartphones in the US market) was infringing 10 Apple patents with their imports of Android-based smartphones. This summer, the ITC issued an interim decision that HTC was indeed infringing upon two of Apple’s patents, and recommended issuance of a limited exclusion order.

Everyone who could petition for review did so – HTC, Apple, even the ITC’s investigative attorney wanted another go at this case. Google and T-Mobile (a major HTC customer) filed briefs in the appeal. In the end, the ITC determined that the HTC products infringed claims 1 and 8 of US Patents 5,946,647, but that the other actions either did not, or were not proven, to infringe. A limited exclusion order was issued to prohibit the importation of infringing personal data and mobile communications devices, commencing on April 19, 2012.

Apple claims they won the suit. HTC claims they won the suit. Neither empire is likely to crumble or thrive over a minor piece of the user interface – a bit of software which HTC has already designed around.

Regardless of what one may think of this minor skirmish in an international patent war, the role of the ITC is less familiar than the usual legal maneuverings in the District Court system. It is an independent federal agency, with bipartisan membership and certain quasi-judicial functions like the investigation of intellectual property issues in customs cases. Appeals from the decisions of the administrative law judges of the ITC are first heard by the Court of International Trade and then by the Court of Appeals for the Federal Circuit (CAFC).

The ITC under 19 United States Code (USC) 1337 has the power to halt importation or sale within the United States of articles that infringe a valid and enforceable United States patent. To do so, it must decide if such infringement is taking place. However, it appears that their decision on the existence of infringement has no effect on other courts.

Are the issues decided in this ITC case resolved? Not at all. Apple is perfectly free to sue HTC for patent infringement of the claims found free of infringement by the ITC, if they desire, in the US District Courts. That is, in principle the ITC could hold there is infringement while a US District Court holds there is none, or vice versa. Both courts have jurisdiction over different parts of the issue. Since the appeal paths intersect at the CAFC level, would a discrepancy at a lower level freeze in place until a dual appeal reaches that court?

We may yet wind up with the antinomic situation that the ITC prevents sale of an imported device, while a US District Court decides that there is no infringement, and that the device may be sold and used freely. I am not aware if this situation has arisen in the past, but it will surely manifest in the future. While patents retain their current position as being more important to a business than innovation and competition, much more silliness is likely to be our common fate.