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The International Trade Commission handed Apple Inc. a win on Monday, finding that Android phones made by HTC Corp. infringe one of Apple’s patents. The ITC commissioners ruled that all infringing HTC phones will be barred from being imported to the United States starting in April. It’s the first fully litigated patent dispute in the United States between Apple and an Android smartphone maker. Before his death, Apple Chief Executive Officer Steve Jobs called Android “a stolen product” and vowed to “go thermonuclear” against its makers. The HTC fight is just one front in a wider patent war between Apple and rival smartphone companies including Motorola Mobility Holdings Inc. and Samsung Electronics Co. over the technology. But it’s the first case to go from trial to final determination. In July, Administrative Law Judge Carl Charneski issued a 238-page initial decision ruling that HTC infringed two of Apple’s patents, violating Section 337 of the Tariff Act of 1930. There are no monetary penalties for such violations. Instead, the victor is awarded an exclusion order directing the U.S. Customs and Border Protection to turn away all infringing articles. The ITC’s five commissioners (the sixth, newly confirmed, did not participate) opted to review Charneski’s initial determination. In their final determination issued this evening, the commissioners reversed him in part, finding that HTC did not infringe one of the patents at issue, which concerned the way software is organized. But they did find HTC infringed two claims of the other patent, which covered a feature allowing a user, for example, to tap on a phone number in an e-mail and automatically dial the number. That was enough to trigger a limited exclusion order targeted at infringing HTC Android phones. HTC and its allies including Google Inc. and T-Mobile USA Inc. asked the ITC to refrain from issuing such an order, arguing that it was not in the public interest. The ITC commissioners declined, finding that such considerations “do not preclude the issuance of the limited exclusion order.” (The last time the ITC determined an exclusion order was not in the public interest was in 1984, in a case involving beds for burn victims where there was no alternative product). But the ITC did agree to delay implementation until April 19 to “provide a transition period for U.S. carriers,” citing “consideration of competitive conditions in the United States economy.” T-Mobile, which relies primarily on infringing HTC phones for its 4G network, had asked for such a delay. The ITC also turned down Apple’s request for a cease and desist order, which would have barred the sale of infringing products already in domestic inventory. In addition, HTC may, until December 2013, “import refurbished handsets to be provided to consumers as replacements under warranty or an insurance contract.” The ITC decision may be appealed to the U.S. Court of Appeals for the Federal Circuit. Apple was represented by Kirkland & Ellis; Palo Alto, Calif., patent boutique Bridges & Mavrakakis and Washington’s Adduci, Mastriani & Schaumberg. HTC turned to Quinn Emanuel Urquhart & Sullivan; Perkins Coie and Keker & Van Nest. Jenna Greene can be contacted at [email protected].

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