Apple 2.0

Covering the business that Steve Jobs built

Apple v. HTC: What's the deal with Delaware?

October 2, 2012: 2:37 PM ET

Is there no delaying tactic that doesn't work in this U.S. district court?

FORTUNE -- On March 2, 2010, Apple (AAPL) filed lawsuits against HTC at the International Trade Commission and the U.S. district court of Delaware -- the first of what would be dozens of patent infringement suits against the manufacturers of smartphones and tablets based on Google's (GOOG) Android operating system.

In the press release that announced the 2010 suit, Steve Jobs issued what would become Apple's intellectual property mantra:

"We can sit by and watch competitors steal our patented inventions, or we can do something about it. We've decided to do something about it. We think competition is healthy, but competitors should create their own original technology, not steal ours."

Unlike Samsung, which Apple sued more than a year later, HTC has so far emerged from its legal battles with Cupertino almost unscathed. As FOSS Patents' Florian Mueller notes in an item posted Tuesday:

"HTC has been unbelievably effective in its efforts to stall Apple's enforcement. It made some smart tactical choices, and it was lucky. Out of the 20 U.S. patents Apple asserted in March 2010 (and the total of 32 U.S. patents Apple has so far asserted against HTC in the initial and subsequent complaints), only four have come to judgment."

The Taiwanese manufacturer's most effective strategy has been to transfer all its U.S. cases to Delaware and then persuade the Delaware court there's nothing to be done until the ITC finishes its work -- a process that's likely to drag on for another two years.

On Monday, Apple lawyers filed a 20-page brief that begged the court in unusually strong language to take mercy on the company and deny HTC's latest request for a delay.

"Since Apple first began attempting to enforce its patent rights against HTC two years ago," it notes, "HTC has introduced twenty new infringing products using a half-dozen versions of the accused Android software.

"HTC's transfer-and-stay strategy treats the Court as a dumping ground for Apple's offensive cases. If this case is stayed, it is difficult to imagine what claims Apple could bring that HTC would not contend should be transferred to this Court and stayed."

The brief points out that other district courts -- one in the Northern District of California in particular -- have demonstrated an efficiency that puts Delaware to shame.

"Apple's $1 billion jury verdict against Samsung," Apple concludes, "stands as an unshakeable testament to both the importance of Apple's claims against its Android competitors, and the power of an efficient district court trial to resolve such claims."

You can read Apple's brief in pdf form here.

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About This Author
Philip Elmer-Dewitt
Philip Elmer-DeWitt
Editor, Apple 2.0, Fortune

Philip Elmer-DeWitt has been following Apple since 1982, first for Time Magazine, and now on the Web for Fortune.com.

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