An administrative International Trade Commission (ITC) law judge Friday decided that HTC infringes two Apple patents, a judgment that puts Android in Dutch.

It was a preliminary decision that will be kicked upstairs to ITC's six commissioners to vet. They should decide by December 6, Pearl Harbor Day, if it sticks or not. If Apple's successful, HTC will be barred from importing Android widgetry into the US.

Apple originally asserted 10 patents, eight of which failed, and the ITC's staff recommended that Apple's case be scraped.

Patent blogger Florian Mueller thinks the two patents that survived are important, appearing to be at the core of Android and infringed by all Android devices.

The same patents have also been asserted against Motorola Mobility and, despite what Google says, putting on a brave face, the infringements relate to Android operating system functions.

To no one's surprise, HTC said it will appeal and claimed it has "alternate solutions in place to address the patent infringement issues."

HTC may have figured out a way around the fundamental Apple patents but observers figure it'll take them a while to develop it and could mean a performance penalty.

Suggesting HTC's just big talkin', Florian said, "Standing in front of the Great Wall of China, you can also vow to walk around it. That doesn't mean it's a viable option."

HTC pointed out that the ITC found Apple infringes on two patents held by S3 Graphics, the flagging California concern HTC is supposed to buy off of Via for $300 million, a move that hints of a cross-license but HTC may not want to hold its breath waiting for a cross-license. Apple has already filed a second new complaint with the ITC citing five different patents. And it's filed three federal lawsuits against HTC involving a total of 16 patents including the five patents in the second ITC complaint.

Anyway, as Florian says, Apple may be able to solve S3's problem "either by using different types of chips or by buying chips from someone who already has a license from S3." It's not in a mood to go negotiating any licenses. It's out to starve Android technologically.

Over the weekend HTC announced it would buy back as much as 2.44% of its outstanding stock for somewhere between US$624.7 million and US$763.5 million. The scheme failed to stop the stock from tanking.

See http://fosspatents.blogspot.com/2011/07/itc-judge-finds-htc-in-infringement-of.html and http://fosspatents.blogspot.com/2011/07/these-tables-show-how-android-infringes.html.