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HTC Files Answer with Counterclaims to Apple's Patent Infringement Suit - Updated
Tuesday, August 24 2010 @ 05:49 PM EDT

This could get interesting. HTC has filed its answer to Apple's complaint [PDFs] against them for patent infringement, with affirmative defenses and counterclaims.

The case, Apple Inc. v. High Tech Computer Corp. et al, is now before Judge Gregory M. Sleet, docket number: 1:10-cv-00544-GMS, in the US District Court in Delaware. The et al means there are others as defendants, and the full caption is Apple Inc. and NeXt Software, Inc. v. High Tech Computer Corp., a/k/a HTC Corp., HTC (B.V.I.) Corp., HTC America, Inc., and Exedea, Inc. The defendants are asking to move the case from Delaware, where Apple filed, to Northern California. I don't know about you, but I'd rather be in any state *but* Delaware, after watching SCO's bankruptcy there.

HTC denies infringing the patents, of course, but they also say as a first affirmative defense that four of the patents are invalid for "failure to comply with one or more of the conditions for patentability set forth in Title 35 of the United States Code, including, but not limited to, utility, novelty, non-obviousness, enablement, written description and definiteness in accordance with 35 U.S.C. §§ 101, 102, 103, 112, and/or 116, or are invalid pursuant to the judicial doctrine barring double-patenting". HTC also claims prior art, marking, laches and marking defenses, and it says it has license agreements with third party suppliers to do what they do the things Apple is suing them over. It asks the court to declare the patents invalid. Here's a recent case highlighted on EFF's site where some of those types of defenses worked perfectly.

You know how in the movies when two guys get into a fight on the street, another guy will run into a bar and yell, Fight! and everyone runs outside to watch? I feel like that guy reading this filing, because I see HTC intends to fight back.

Apple, meanwhile, is asking that all four current cases involving these patents be consolidated [PDF], but in Delaware before Judge Sleet, at least for the pre-trial work. No one wants to spend for discovery duplicatively. That's a big-bucks item. The four are Nokia Corporation v. Apple Inc., C.A. No. 09-791 GMS, Nokia Corporation v. Apple Inc., C.A. 09-1002 GMS, Apple Inc. et al. v. High Tech Computer Corp. et al., C.A. No. 10-166 RK, and Apple Inc. v. High Tech Computer Corp. et al., C.A. No. 10-167 RK.

Apple's reasoning:

I. THE NATURE AND STAGE OF PROCEEDINGS

There currently are four patent infringement actions pending in this District asserting that Nokia Corporation (“Nokia”) and/or High Tech Computer Corp. and its subsidiaries (collectively, “HTC”) infringe a number of Apple patents. The first two cases filed were assigned to Chief Judge Sleet. The second two cases were assigned to Judge Robert Kelly, who is sitting in this District by designation. Pursuant to Federal Rule of Civil Procedure 42(a), Apple requests that the Court consolidate the second set of cases—at least for purposes of coordinating pre-trial activities—with the first two that are pending before Chief Judge Sleet.

Consolidation is appropriate in this instance because the four cases involve numerous common issues of law and fact, including eleven patents that Apple has asserted against both Nokia and HTC. Given the overlapping patents and technologies at issue in the cases, consolidation offers the benefit of conserving resources and promoting judicial economy by avoiding the need for duplicative discovery or any other redundant litigation activities, such as multiple Markman hearings concerning the same patents. Importantly, consolidation before a single judge will also ensure that there are no inconsistent pretrial rulings—most notably inconsistent constructions of claim terms in the eleven overlapping patents.

There is no danger of prejudice to any of the parties in these cases as a result of consolidation. All four litigations are still in the very early stages, with only one having reached discovery and two having been stayed pending the outcome of proceedings in the International Trade Commission. HTC has not yet answered, and there is no schedule in place yet in the non- stayed HTC case. Consolidating that case with the non-stayed Nokia case should present no complications, and the new case would benefit from the fact that Chief Judge Sleet has already considered relevant procedural issues and recently set a schedule in the related Nokia action. Indeed, Nokia and HTC themselves recently argued the merits of consolidation with respect to a set of parallel proceedings at the ITC involving many of the same Apple patents. Nokia and HTC successfully argued that two investigations regarding their infringement of five overlapping patents should be consolidated into a single investigation, contending that consolidation was necessary to “eliminate the waste of the parties’ and [the tribunal’s] time and [of the] expense that would otherwise result from redundant discovery, unnecessarily repetitive briefings and duplicative hearings featuring the same exhibits, witnesses, and evidence.”2 These arguments apply with equal force to the present district court actions, which involve the same defendants and multiple overlapping patents—including several of the same patents at issue in the consolidated ITC cases. The benefits of ensuring consistency and avoiding a waste of judicial resources strongly favor consolidation. Having argued for full consolidation of Apple’s cases in the ITC, HTC and Nokia cannot credibly contend that the cases pending before two judges in this District should not be consolidated for efficient case management and to eliminate duplicative activity and potential inconsistencies. Apple therefore respectfully requests that the Court consolidate the HTC case with the Nokia case.

I hope consolidation happens somewhere. It's hard to keep up with so many cases at once, and now that Oracle is suing Google over Android, I'm a lot more interested in the HTC case than I was. The common goal is to attack Google's Android. Here's a ZDNET article with some background on the Apple v. HTC case. Gizmodo has a long description and analysis of all the patents here, here and here, so don't visit unless you are free to learn all about the patents.

Update: We have now the redacted version of the Declaration of Karen L. Pascale in support of HTC's Motion to Transfer Venue, and there is an exhibit attached that is very long, actually 8 different exhibits crammed into one long PDF, so we are making it available as Pacer does that way, but below the docket item, we've broken the exhibits into its 8 pieces:

08/27/2010 - 19 - REDACTED VERSION of 17 Declaration, of Karen L. Pascale in Support of Reply Brief in Support of Motion to Transfer Venue Pursuant to 28 U.S.C Section 1404 by Exedea Inc., HTC (BVI) Corp., HTC America Inc., High Tech Computer Corp.. (Attachments: # 1 Exhibit 1-8)(Pascale, Karen) (Entered: 08/27/2010)

Here's the exhibit file, 156 pages, so it is broken up into separate exhibits as follows (descriptions are from the redacted Declaration):
  • Exhibit 1 - Complainants Apple Inc and NeXT Software Inc.’s Combined Opposition to the Staff’s Nokia’s and HTC’s Motions for Consolidation filed in ITC Inv. Nos 337-TA-704 and 337-TA-710 on April 21, 2010

  • Exhibit 2 - Apple Inc’s Answer, Defenses and Counterclaims from Nokia Corporation v. Apple Inc., C.A. No.10-CV-249 (W.D. Wisc.), filed on June 28, 2010

  • Exhibit 3 - Apple Inc.’s Memorandum In Support of Motion to Transfer Venue to the District of Delaware Pursuant to 28 U.S.C. § 1404(a) from Nokia Corporation v. Apple Inc., C.A. No.10-CV-249 (W.D. Wisc.), filed on June 29, 2010

  • Exhibits 4 and 5 - Redacted

  • Exhibit 6 - Apple Inc.’s Reply Memorandum In Support of Motion to Transfer Venue to the District of Delaware Pursuant to 28 U.S.C. § 1404(a) from Nokia Corporation v. Apple Inc., C.A. No.10-CV-249 (W.D. Wisc.), filed on July 30, 2010

  • Exhibit 7 - Defendants HTC Corp. and Exedea, Inc.’s Reply Brief In Support of Motion to Transfer Venue Pursuant to 28 U.S.C. § 1404 from Apple Inc. and NeXT Software Inc. v. HTC Corp. and Exedea, Inc., C.A. No. 10-166- RK and 10-167-RK (D. Del.), filed on June 9, 2010

  • Exhibit 8 - Order No. 5: Granting the Commission Investigative Staff’s Motion for Partial Consolidation of Investigation Nos. 337- TA-704 and 337-TA-710 and Denying Nokia’s Motion for Full Consolidation, filed in ITC Inv. No. 337-TA-704 on April 26, 2010

Now we can look deeper into what's going on in this picture.

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