Patent wars

No, you didn't wake up in the Fringe universe, this is really Rene from TiPb posting on Android Central. I've been using Android since the G1, had a Nexus One until recently, and will be getting whatever the next-generation Nexus is as soon as it's out. I'm also all in on Google services, with two paid accounts and very nearly more Gmail, Calendar, and Docs, and Google+ circles than I'm comfortable thinking about.

And I'm getting nervous about Google and their continued silence on mobile and mobile-related patents.

Now, the patent system as it currently exists is broken beyond the point of embarrassment.  If you have an idea and enough money, you don't even have to invent anything. You can just troll – or sell out to a patent holder to troll – people and companies that are actually making things and pretty much extort settlements and licenses out of them. It's a terrible system, but it's the system we're stuck with. And it's the system Google is stuck with as well.

Cases in point:

Winstron just became the fifth Android manufacturer to agree to pay Microsoft licensing fees for using Android. They follow on the heels of HTC and General Dynamics, among others. Motorola and Barnes and Nobles are currently in litigation over the same licensing. And Microsoft is now seeking the same concession from Samsung.

The terms of the licensing agreements haven't been disclosed, but Citi analyst Walter Pritchard has previously claimed HTC pays Microsoft $5 for every Android device they ship, and rumor has it Microsoft might want $15 from Samsung. That's what Microsoft reportedly gets for a Windows Phone license. (By contrast, Google gets nothing for Android licenses -- it's offered freely.)

Why are some manufacturers paying Microsoft for patent protection under Microsoft's IP portfolio? Because Google lacks any significant mobile patents of their own, which means they can't provide "mutually assured destruction" protection themselves. They could offer indemnification but that puts them in the legal crosshairs of competitors and trolls alike.

Google could have addressed their currently anemic mobile patent portfolio by making a serious run at the recently auctioned Nortel patent portfolio. Instead, after a strong initial entry, they rapidly devolved into a series of perplexing bids based on the value of Pi, the distance to the sun, and other mathematical constants that led to their seriousness being questioned.

Now, according to Robert Cringely's sources, Apple's $2 billion share of the $4.5 billion winning bid will get them ownership of Nortel's LTE 4G patents, among others. Apple is already suing Android manufacturers, including HTC, Motorola, and Samsung. Any bets on whether LTE patents get added to the suits?

Google could try and stall the purchase or make anti-trust challenges, or even try to buy their way back into the fight by purchasing an established mobile company like BlackBerry maker RIM (since Palm and Nokia are off the table). But as of right now, we haven't heard anything from them, or seen them do anything to help their platform partners.

Several Android developers have now either been sued, or threatened with suit, by patent troll Lodsys, which is also suing Apple iOS developers. It's extremely expensive to litigate patent suits, both in legal fees (even if you win) and damages (should you lose). That means developers are pressured to settle regardless of the merit of the suit, and that has a chilling effect on development, which hurts the platform.

Apple, while failing to provide indemnification for developers, has at least filed a motion to intervene in the Lodsys lawsuits. It's a good, strategic motion because Apple can argue small developers are not financially able to protect Apple's interests. It also provides no guarantee of future intervention or help from Apple legal beyond this specific suit. (Win/win for Apple legal, nerve racking for Apple developers.)

As far as we know, Google hasn't said a word or offered anything to Android developers.

And they haven't said anything about VP8 -- the new video standard, which they're pushing as better than OGG Theora and free-er than H.264 -- but which also faces possible patent action by H.264 licensor, MPEG-LA.

Add to that the Oracle lawsuit over the use of Java in Android development, and Google is displaying an almost reckless attitude when it comes to patents. 

Perhaps they simply don't care if Microsoft and Apple go after their manufacturers -- perhaps they feel that's the manufacturer's problem. Google doesn't make direct money off of Android anyway, so that's certainly a possibility.

But what if, instead of licensing fees, Microsoft's terms required the exclusive use of Bing for search and advertising? What if Apple's settlement terms made it financially more viable for ODMs to switch to Windows Phone? Would that give Google greater motivation to step up to the plate in these, and future patent wars to come?

I hope not. I hope they act sooner. I really want that next generation Nexus, with the tastiest Ice Cream Sandwich filling Andy Rubin and Matias Duarte can cook up, and the fantastic hardware HTC, Moto, and Samsung can manufacture. And the one after that, and the one after that. And I don't want to have to worry about patent litigation stifling innovation, hurting ODMs, or dissuading developers along the way.

Google currently enjoys the most powerful and popular platform on the planet, but with that comes responsibility. You can't be free or openy on manufacturers' and developers' dimes. Not when you're one of the richest and most influential companies in technology.

More: FOSS Patents


Reader comments

Editorial: How long can Google and Android afford to remain silent on patents?


I can see Google biding their time, and then coming out guns-a-blazin' and striking like a cobra leaving no survivors.

That's alot on the front page. But yeah... Google needs to do something. It seems silly that Android is supposed to be free and open-source, but Microsoft and other companies are trying to take away the "free" part.

I think it's silly that you don't understand what open-source means. If you open-source project infringes on technologies that have been patented and owned by other companies, you cannot sell it. Plus, these companies have to defend their legal stance or else they risk losing the patents. The other companies aren't trying to take away the free part because there is no free part.

There was nothing wrong with his post. The operating system is offered free to the manufacturers (and everyone else for that matter). That's what he meant by free. Microsoft and others are are trying to kill this sort of distribution model by making it not viable, hence making a free operating system not so free. His point stands.

I would find it highly unlikely that MSFT, who just came off of 10yrs of anti-trust oversight, would attempt to strong arm manufacturers into Bing-ifying their phones. Perhaps Googles tactic is to highlight the ridiculousness of our current patent system, and force Congress to do something.

Patent trolls are those who own patents and won't ever use them (Lodsys). Microsoft actually implements theirs.

*sometimes* implements theirs. Most patents that are granted never see fruition, but are patented so as to provide an entry point if a competitor acts on the concept. Look at all the zany stuff Microsoft and Apple have patented and tell me when they plan to take it to market...

I couldn't agree more. Google needs to do something and do it fast. They need more control over what android is becoming and what it looks like to the population

Maybe Google somehow knows new patent laws will be introduced that severely limit the abuse on the system.

there was an interesting article about how they weren't actually serious about the nortel patents when you look at the numbers that they bid (one bid was pi 3.14 billion). it would be interesting if they just bought RIM in order to get in or the nortel patent deal.

Either Google needs better patent researchers, or this is an awfully expensive experiment on changing the patent system.

trademark != patent, and I think he only trademarked spelling his name with dollar signs instead of S's or something like that...

Solid editorial. Changing the patent system is a pipe dream. IP, however whacky in the software world, is simply part of doing business. I think everyone in the mobile computing industry will be sorting through how to navigate patent issues for some time, but it sure can't hurt to have a solid patent portfolio in your back pocket. As Rene points out, this is likely to become a bigger issue for Google unless they take action.

The challenge for app developers is particularly concerning. I hope that gets sorted quickly.

BTW, nice to see the posting overlap between androidcentral and tipb. I saw that Phil contributed to a piece on the iPhone4 anniversary. Android and iOS are both part of my mobile computing life. They each have strengths, and the competition between them is great for all of us out here in real world 101.

"Android and iOS are both part of my mobile computing life. They each have strengths, and the competition between them is great for all of us out here in real world 101."

You are right. Unfortunately, Apple doesn't want to compete on product alone. They think that since they were first to market, they deserve some sort of monopoly on touchscreen smart phones.

For all those people that think software interface patents are just dandy, consider the Internet for a moment. Web sites have software interfaces composed of HTML, CSS and Javascript. Can you imagine the repercussions if someone were allowed to patent the concept of a tabbed Web interface? What about bread crumb trails? Imagine if every Web site that has a bread crumb trail or implements tabs owed some schmuck a penny a visitor. That's not any different than these mobile "look & feel" patents. The Internet has grown and thrived precisely because good ideas tend to reproduce and bad ones are discarded. Web development would grind to a halt if every time someone designed a new site, they'd have to worry about using a motif or interface concept that someone else had already done.

Actually, I do believe there are a few patent trolls out there claiming to have patented tabbed interfaces, and even bread crumb trails if I remember right. I think they just went after a few large companies though instead of all the small guys. There are also elements that are implemented in browsers that weren't part of the W3C's specs, such as object and embed tags, which if you remember Microsoft was sued over and forced to change the way they did embeds, which in turn forced everybody else to change they way they embedded Flash and media players on their pages at the time.

Software patents are ridiculous. Those that want to protect their IP should close their source. I'm saying that as a developer whose name is on a pending patent as part of work I've done with my company. When they came around asking for me to sign the patent application I thought it was ridiculous. You shouldn't be able to patent software interfaces and such.

ether the execs at google are high or they have something up their sleaves they are not taking this serious at all. They are already public enemy number one with the other software companies.

Y'all - careful of what you read on FOSS Patents. Florian Mueller has been known to be a Microsoft shill, and his research has been suspect. Follow what's happening on Groklaw if you want the real story:

Personally, I'm suspicious of anybody who uses the term "Y'all". The only thing more annoying than folksiness is faux folksiness.

I think this well written article was pretty much spot on, and I sure do hope they have an ace up their sleeve.

This was one of the most interesting, and well written articles i've read on any tech site !! well thought out, and perfectly executed !!

Thanks !

Google is going to come out like a junk yard dog taking out everyone who stands in their way! They already have something in the works. This was prepared before hand.

Nicely written, totally missing point. What patents is Samsung violating? You can sue anyone for core functionality of mobile phones , this have to stop. It will be good precedent if companies like MS loose some trial based on this kind of patents. Or, we will live in world where patents for switching light on exists.
US sold itself to China during last crisis and now US companies wants to create market where noone wants to sell. Pat yourself on back, last time.

I kind of get your point. Microsoft isn't slapping wrists for anything Samsung has manufactured but the use of Android is the target.
They can't go after Google because they don't sell Android (please bare with my ad-hock theory) so in theory shouldn't Samsung (and everyone else) be able to prove the same.

Work with me here... what if the devices weren't sold with android on them and once you've bought your phone and when switching it on you have the 'choice' to download the free open source Android version tailored for your phone. This could all happen while you give your phone the first charge.

I'm a dreamer I know

I wonder how our automotive world would be if Ford had patented the steering wheel and all parts to control the motion of an automobile up to the wheels themselves? Thing we would have a Chevy or Chrysler today let alone any foreign cars imported. Suppose a patent troll, who does nothing with any technology but profit from someone Else's work, had the patent?

You are viewing history through rose-shaded glasses. Do some research on the railroad industry and the telegraph industry if you want to see some early examples of patents. Directed more at your example, even the collapsible steering column was under patent protection, when the federal government forced all manufacturers to use them.

The problem as I see it isn't with patents, themselves, but with patents being granted that shouldn't be (too obvious, prior-use, etc.).

Good post, however, it seems like you don't understand Google's outlook on patents. Google has a 'we are the world, everything should be open source' type of view.

Great Post! I don't know how I missed this 2 day's ago? Phil, where have you been hiding Rene? TiPb? Rene, you need to stop by more often. Thanks!

Since I can't patent pooping itself, I'm gonna patent pooping while sitting :D
then i'm gonna sue everyone for pooping while sitting and will make a company called "Poops on the go" selling all kinds of pooping facilities :D
then when i'm rich enough i make a suing company called "Poople" to search for every pooper on the planet and sue him. Yay! guaranteed business :D
My suers (lawyers) are gonna be called "Poopple" :D