There's an all-or-nothing element to litigation before the U.S. International Trade Commission that sure makes it look like Apple and its lawyers at Kirkland & Ellis trounced HTC in Monday's ruling by the full commission. Sure, the commissioners disagreed with an initial determination by ITC Administrative Law Judge Carl Charneski and concluded that HTC doesn't infringe an Apple patent on processing voice signals. The commissioners also found that another Apple smartphone patent is invalid, and that a third would be invalid under Apple's own claim construction. But because the commission found that HTC, which uses Google's Android operating system in its smartphones, infringed an Apple "data tapping" patent that permits users to (among other things) dial phone numbers that appear in emails and texts, it issued an exclusion order barring HTC from importing phones into the United States beginning in April.

You infringe the patent, you can't sell the phones in the United States. Game over for HTC (and Google), right?

Wrong. A close look at what the ITC did and didn't do in Monday's order suggests that the commission went out of its way to permit HTC to continue to compete with Apple.

First, consider what the ITC didn't do. Apple wanted a cease-and-desist order, which would have barred the sale of infringing phones that are already in the United States. It didn't get one. Nor did the commission order HTC to post a bond based on the sale of allegedly infringing devices while it seeks Presidential review of the commission's decision.

Instead the ITC issued a limited exclusion order that, significantly, gives HTC twice the usual 60 days to attempt a work-around to Apple's patent. HTC has until April, according to the commission's order, to either remove or replace the infringing technology. HTC announced Monday that it would remove the data-tapping feature, which, according to Florian Mueller at FOSS Patents, in characteristically trenchant analysis, would put HTC at a competitive disadvantage since consumers have come to expect the data-tapping feature. But I'd be very surprised if HTC didn't have a work-around up its sleeve, given that it's had almost a year since Apple filed the ITC suit to develop alternative technology. (Mueller said an infringement finding on the other Apple patent the ITC considered would have been far more devastating to HTC.)

If HTC does devise a work-around to the one infringed patent, the battleground shifts to the Customs and Border Protection agency, which is charged with enforcing ITC exclusion orders. That means a whole new fight Apple will have to win, with HTC continuing to import devices while it's underway. If the full ITC had concluded HTC infringed a patent that's less peripheral, or that it violated more than one Apple patent, it would have been much tougher for HTC to propose an alternative.

Finally, the commission explicitly permitted HTC to continue importing "refurbished" phones for the next two years, to replace warrantied or insured devices -- another sign that the commission is worried about the impact of its ruling on smartphone competition and seems reluctant to permit litigation to supersede the marketplace.

HTC was represented at the ITC by Quinn Emanuel Urquhart & Sullivan and Keker & Van Nest. Quinn Emanuel declined comment, and Apple didn't respond to a request for comment.

(Reporting by Alison Frankel)