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