United States Circuit Judge Richard A. Posner has issued an interpretation of Apple's '263 patent that is likely to result in a jury finding HTC (and Android in general) of infringement in the key "realtime API" case previously passed over by the ITC.

The '263 patent is very significant because it represents technology at the core of Android, rather than being a physical design or user interface feature that companies using Android can easily work around or remove.

An ITC Administrative Law Judge originally found HTC's Android products were infringing upon Apple's "realtime API" patent, but after his ruling the six member ITC Commission issued a final ruling on the matter that reversed the ALJ's finding and only held HTC to infringe upon Apple's less important "Data Detectors" patent, a feature HTC promised to remove from its products.

Apple appealed the ITC Commission's decision, which was based upon an argument by HTC that insisted the word "realtime" in the patent changed its meaning to the extent that Android could not be held in infringement of it.

HTC's line of reasoning in the case was described as "formalistic wordplay" by the original ALJ, and dismantled in detail by programmer and patent-issues journalist Florian Mueller of FOSS Patents last September.

Android's open Infringement

Apple didn't just claim infringement of its '263 patent by Android; it went further to draw a line between Apple's original development of the technology and Android's use of it at Google under the direction of the project's leading developer Andy Rubin.

Apple argued that Rubin "began his career at Apple in the early 1990s and worked as a low-level engineer specifically reporting to the inventors of the '263 [realtime API] patent at the exact time their invention was being conceived and developed."

Mueller now reports that Apple's appeal is being taken seriously by the new appellate judge, who has issued an order clarifying, "I therefore construe 'realtime application program interface' in claim 1 of the '263 patent to mean an 'API that allows realtime interaction between two or more sub-systems," the interpretation Apple proposed.

Mueller notes that "a jury is very likely to find Android to infringe the patent based on that construction but much less likely to deem the patent invalid." He previously noted that Andy Rubin's involvement could also give Apple grounds for claiming willful infringement.