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Apple vs. Nokia vs. Google vs. HTC
Lanxon writes "Wired has published a lengthy investigation into the litigation underway among some of the world's biggest cell phone manufacturers, and what it means for the industry of patent lawsuits and patent squatting. 'According to a 2009 report by PricewaterhouseCoopers, from 1995 to 2008 non-practising entities [patent trolls] have been awarded damages that are, on average, more than double those for practising entities. Consider Research In Motion's 2006 payout of over $612 million to Virginia-based patent-holding company NTP, to avoid its BlackBerry network being shut down in the US. As part of the settlement, NTP granted RIM a licence to use its patented technology; it has subsequently filed lawsuits against AT&T, Sprint Nextel, T-Mobile, and Verizon.'"
Patent trolling/squatting should be outlawed internationally.
Those who can, do. Those who cannot, sue.
Yes that's right, THINK ABOUT YOUR BREATHING. Why you might ask? Well it's simple!
Your brain usually takes care of breathing FOR you, but whenever you remember this, YOU MUST MANUALLY BREATH! If you don't you will DIE.
There are also MANY variations of this. For example, think about:
* BLINKING!
* SWALLOWING SALIVA!
* HOW YOUR FEET FEEL IN YOUR SOCKS!
In conclusion, the THINK ABOUT YOUR BREATHING troll is simply unbeatable. These 4 words can be thrown randomly into article text, into sigs, into anything, and once seen, WILL FORCE THE VICTIM TO TAKE CARE OF HIS BREATHING MANUALLY! This goes far beyond the simple annoying or insulting trolls of yesteryear.
In fact, by EVEN RESPONDING to this, you are proving that IT HAS CLAIMED ANOTHER VICTIM -- YOU!
How long before "Non-Practicing Entity" goes from harmless-sounding euphemism to sinister dysphemism, the way terms like "Ethnic Cleansing" have?
Assuming both sides claims are deemed to have merit and both refuse to pay licensing fees, Nokia has to think of another implementation for some GUI elements, hardly a gargantuan task. However, if Nokia wins, Apple has to reinvent mobile technology, then get all the networks to support their new implementation.
The Wired article on mobile patent lawsuits was, quite apparently, written just before the latest front was opened: HTC yesterday announced that it is now "suing" Apple.
However, at a closer look it becomes clear that HTC didn't file a lawsuit in the traditional meaning of the word, which would mean that they take Apple to a court of law. It is only a complaint with the US International Trade Commission. By contrast, Apple (in March) sued HTC in an actual court of law plus lodged a complaint with the International Trade Commission. Only lodging a complaint is rather weak. Fortune/CNN lists the five patents in play and points out that it's only a complaint, not a suit filed with a court, and is not impressed.
On my FOSS Patents blog I comment on developments concerning patents and Free and Open Source Software, and I see the squabble over video codecs as a closely related issue. In both cases, Apple is on the side of the large patent holders and Google favors "open" alternatives. Android is a Google-backed project, and as I explained in a three-part sequence of blog posts on video codecs, Google so far backs Theora and it might now try to establish VP8, after open-sourcing it (which may happen very soon), as a codec standard. Apple, however, backs MPEG LA's H.264 (even though Apple is only a small contributor to the MPEG patent pool; for an example, Apple contributed only one patent out of 1,135 to the H.264 pool).
There's nothing more unpleasant for a proprietary/closed-source vendor to deal with than free/open-source competition. Patents then come into play and can tilt the scales in favor of entrenched proprietary/closed-source players. Sometimes it's sufficient for the major patent holders just to ensure that the "free" alternative won't be completely free, neither completely free as in free beer nor as in free speech. The use of patents against vendors of Android-based phones mobile phone operating software will probably result in increased prices and possibly also in reduced functionality of Android-based phones. The use of patents against open-source video codecs, which Steve Jobs said would happen but without providing any specifics, would have a similar effect for Theora and, possibly, VP8.
non-practising entities [patent trolls]
While all patent trolls may be non-practicing entities (NPEs), not all NPEs are patent trolls. Individual inventors, the kind that don't have the spare four or five billion dollars necessary to build a processor lab, are NPEs and often unfairly get labelled trolls. Also, don't forget universities and government laboratories. Under the parent's definition of troll, anyone who invents something but doesn't follow through with marketing a product must necessarily be a troll. The intellectual property world is more complicated than that. Real trolls can be NPEs or companies trying to squeeze their competitors - in fact, the latter is much more common than the former.
Patent trolls are a problem for big companies that have lots of money. Trolls have nothing to do with HTML5 not being able to recommend a video codec, and they've nothing to do with worries about how Microsoft will use their patents on .doc, XML, or Mono. Some trolls *do* practice their invention, like the mp3 guys that made a packet from trolling - and as a side-effect, completely insignificant to them, forced GNU/Linux distros to omit mp3 support.
To solve the social problems caused by software patents, we have to abolish them - tweaking the numbers to reduce the problems of mega corporations is not *our* job.
Expert in software patents or patent law? Contribute to the ESP wiki!
The lone inventor is not affected. If he's patented something that someone else is using, we have the following options:
1) They stole it. To do this, the lone inventor will have had to have shown their patent to someone. Stealing it is not possible because the number of lone inventors prohibits
2) They parallel invented it. In which case, either
a) it's obvious and not patentable
b) it's unfair of the lone inventor to lock someone out who also had the same idea
3) The patent was granted and they copied what the patent said. Unlikely. How many places read all the patents to see what's out there? Nobody, that's who.
The holes left for a lone inventor to be shafted unfairly after all those is pretty damn small. As it is, the chances of EVERYONE being shafted without trolling being banned is pretty damn high. Cost/benefit analysis: go with it.
Add to that the lone inventor is already shafted by a bigger entity using their "defensive" patent pool against the lone inventor (without a large warchest, pool of patents, and salaried law department), even where the lone inventor is shafted, there are bigger places to un-shaft him.
The Wired article and most of the media reports and the comments here are focused on patent disputes between the hardware companies involved. But according to a recent announcement, Android is now a high-volume mobile phone operating system and everyone knows that it's a Google project.
Those vendors who, like HTC, decided to build smartphones running on Android had access to the program code on open-source terms. They may not have a formal contract in place with Google at all, or if there is one, it will be more focused on trademark rights because the software itself is under a free license. Still they probably all took a great deal of confidence from Google's backing of Android.
I don't mean to criticize Google for what it has (not) done yet: to step into the ring and bail out companies who took major business decisions based on their reliance upon a Google open-source project. But at some point in time, of which one can certainly argue that it hasn't come yet, there will be industry concern and also concern in the wider Free and Open Source Software community over the extent to which Google stands behind the open-source software it puts out. Google has a significant patent portfolio (small compared to the portfolios of IBM, Microsoft and even Apple, but still much bigger than that of HTC). Google could also pay royalties to patent holders given the important role that Android plays in its overall corporate strategy (Google could become a master licensee of the required patents and then grant sublicenses to vendors selling Android-based phones).
There are rumors that Google plans to open-source the VP8 video codec and it might happen very soon. Multimedia codecs are also a terrible patent minefield. Similarly as mobile phone operating software, they are an OEM component, meaning others incorporate them into their commercial products. Again, it's too early to blame Google for anything here, but the fact that Google doesn't try to bail out the vendors that propagate its Android software raises questions and if Google indeed does open-source VP8, industry will probably want to know about the patent situation. I believe that Google should then at the very least publish an analysis of the patent situation surrounding VP8, including the reasons why Google believes it doesn't infringe on any of the patents held by the MPEG LA pool. That's just one way to look at it. Commercial vendors may, based on the Android experience, actually ask Google for the possibility of an agreement under which Google would hold them harmless of patent infringement suits.
Again, the jury is still out on Google and patent problems with its open-source software, but I believe it's in Google's own best interest to counter an impression that Google puts out open-source projects it effectively controls and lets others take not only the risk that is connected with hardware manufacturing but also, even worse in my view, the risk related to possible patent infringement. It would come down to a game of "if Google wins, it wins; if Google loses (due to patents), its hardware partners lose."
I will be following those future developments closely on my FOSS Patents blog covering open-source patent issues. Now it's still too early to claim Google isn't committed to protecting its open-source initiatives.
The Americas first telegram, transmitted via a repeater: "What hath God wrought" sent by Samuel F.B. Morse in 1844.
And the first reply was:
I'm sorry, God is not available at the moment. To leave a message for God please transmit your message after the beep. When you are finished transmit '1' for more options.
What are the features that Apple, or the other companies, say are being infringed?
I have been using a Windows based smart phone for 7+ years and before that a Palm based smart phone for 4 years. There isn't anything new in the Apple phone that I haven't been doing for 6+ years, except for flinging your thumb to go to the next screen, but Palm was doing screen gestures 7 years ago. Plus other applications and systems have been doing similar things for a long time also.
Apple, and to an extent other companies, are great at marketing, by telling you they have all of this new technology, but non of it is really new of that different then what has been available for years.
I don't mean to downplay the problem that patent trolls / non-producing entites represent, but they're a feature not a bug of the patent system, as Carlo Piana, a European lawyer specialized on Free and Open Source Software matters, recently said on Twitter. The proponents of this kind of patent system simply want trolls to exist, even though they will from time to time have problems with them themselves.
But a troll just wants to make the money. It's a hold-up situation if you face a troll, but if you cough up the money, he'll leave you alone and focus on the next victim. Even though $600 million is a huge amount, RIM (the BlackBerry maker) not only survived but actually generated huge levels of profits ever since.
By contrast, if Apple decides that no one else should use certain multitouch and other functionality, then only those with a really massive patent arsenal ("mutually assured destruction"), which is what Nokia may indeed have, will be able to solve the problem through cross-licensing. But it's economically practically impossible to solve the problem by offering Apple a check because the strategic value of maintaining a certain competitive advantage is so valuable to the market leader that smaller players can't solve the problem by paying. So if Apple insists on its rights, it can tell vendors such as HTC to stop providing certain functionality, period. Unconditionally. No negotiation. Cease and desist. The only chance then may be that if you can prove a dominant position, antitrust law could be used to achieve compulsory licensing. In Apple's case, that would be very difficult to say the least...
Again, I don't mean to downplay the problem with patent trolls, but in order to ensure that incremental innovation can take place for the benefit of consumers, it's key to watch what the large patent holders are doing, starting with the biggest patent bully on the block, IBM, but also looking at everything else that's going on.
Really? Do you really believe that they are holding back the dogs because they are trying to achieve sainthood? Come on. . ..
If you spent over 40 billion EUR in R&D (like Nokia) I'm sure you'd sue as well if you thought that somebody was stealing your innovation (like Apple). Thankfully this isn't about "mind share" but actual merits. Nokia just might end up killing Apple's mobile ventures. As a Finn I'm totally rooting for Nokia because they make up a large chunk of our nation's GDP.