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Are Google's Patents Too Weak To Protect Android?
An anonymous reader writes "The Guardian published an opinion piece written by former-NoSoftwarePatents-activist-turned-controversial-patent-blogger Florian Mueller. He lists 12 patent lawsuits instigated against Android last year, says there are many more to come, and believes that Google's portfolio of only 576 US patents is dwarved by those of Apple, Microsoft, Oracle and others. So Google can't retaliate against aggressors such as Oracle. Consequently — he argues — Android makers will have to remove functionality or pay high license fees, and the operating system will become unprofitable for handset makers. Even the app ecosystem could suffer, he says. Since Google received only 282 new US patents in 2010, the gap between Google's portfolio and those of its competitors is widening further: Apple produces about twice as many, and Microsoft gets more than 3,000 new ones a year. Let's discuss this: is Android really in for so much trouble? Can't Google find other ways (than owning many patents) to defend it than countersuing? How about its vast financial resources?"
How much does anyone want to bet that this supposed "anonymous reader" is Florian himself?
China is nothing compared to an army of Patent-lawyers.
What makes almost 600 patents too small a number? It sounds to me like a few effective, relevant patents are better than a hoard of patents most which are completely unrelated and exist only because nobody yet has the incentive to contest the patents. The author claims that Google needs more raw patents, but I don't see the case for it.
Android runs on... oh... ...Samsung phones and ...Sony-Ericson phones and ...creative device and ...sharp devices and ...benq devices and ...motorola devices ...NEC devices ...LG devices.
If these conpanies put together a paten pool to protect android, then its enough to sue Apple and Microsoft together to Hell and back (not to mention Oracle is not goiung to make these customers angry). All of the companies sold mobile devices long before Apple thought about it. Even Nokia should fear such a consortium when it comes to patents regarding mobile devices.
It's not the number of patents, but the likelihood of a patent being actionable, and/or enforcible.
In any case, if there is a court judgement that sufficiently harms innovation because of the escalating war in software patents, you will be sure that there will be a change in the direction in jurisprudence with regards to these "soft" patents. You have to remember that most of hte world don't have software patents, and many places (like Europe) would like to keep it that way.
:. Ultimate Control Dedicated/VM Servers
So what ? I have 4 limbs, but I can certainly kill a spider with 8. It all depends on the essence of the patents themselves. What do they cover, are they very broad ? Are they specific ? etc etc...
Actually I would like to suggest that Google's main approach and threat would be to counter the whole software is patentable paradigm in ways that the big three (Microsoft, Apple, and Oracle) will not want to defend against. Plus the likely scenario that IBM would rather see Google succeed than the other three, and their patent portfolio in the form of prior art assistance to Google would change the game entirely, or the fact that Google is likely to code around any patents more quickly than any trial can move forward. So I think that trying to take Google and Android down via patents is a losing proposition.
Plus the Google ecosystem can effectively fight off alot of threats simply by the fact that they are have no obligation to play nice when it comes to search engine trafficking/optimization and/or investments.
For example, picture what happens if Google puts resources into Postgres, MariaDB, or any of the other major database platforms that would cut into the profitability of Oracle or Microsoft. Or takes up the banner of Open Office to free it from the clutches of Sun, further weakening Microsoft profit margins. What people are learning is that Google at least so far tends to be a very worthy adversary. So far we also like Google more than the billionaires clubs as run by Gates and Ellison.
...Open Source isn't the only answer -- but it's almost always a better value than the alternatives...
Don't forget that it's not just google that can't let andriod go. All of the members of the open handset alliance would be hurt to some degree if android were encumbered. I don't expect the carriers that have the iPhone to care much but Motorola and Samsung should.
grape - the GNU free, open source rape
These articles bother me. Google called a couple of colleagues and asked "Hey, how many patents you got?" They got the answers back, and still decided "No problem. Let's go make a mobile OS."
One month's work by a Chief Strategist has already dealt with this ages ago. These articles are like stones chewing up open spots on the bloGOsphere. Just put an article down, and now it's there. Some combination of them "decides" the "mood of the consumers".
Articles speculating about someone sinking Android are trying to block the key points in a Life-Or-Death problem for Google. They're trying to create negative self fulfilling prophecies.
My first Journal Entry ever, in 8 years! http://slashdot.org/journal/365947/aphelion-scifi-fantasy-horror-poetry-webzine
The reason that Google has comparatively fewer software patents issuing every year is because there's often a massive lag behind filing a patent and having it issued. I've seen software patents that have taken as long as 6 or 7 years before it gets issued due to the amount of prosecution done on it. 6 or 7 years ago, Google was a much smaller (and newer) company with much less resources to file software patents. In comparison, the reason Apple gets 3000 patents a year is because they've been in business for over 20 years.
My postings are informational and does not constitute legal advice. Act on it at your risk.
Microsoft has a patent on a phone crashing. If any Android app ever crashes, they'll have to pay royalties to Microsoft, remove the bugs (the offending functionality), or pull that app from market.
If you're going to go on that old exception about algorithms and "all software is math," then that argument has lost many times and is unlikely to ever succeed.
It succeeded in part in In re Abele. It also succeeded in cases focused more on formalistic hoops, like In re Warmerdam or In re Lowry, and we never did find out whether Beauregard claims would pass judicial muster. SCOTUS avoided the question in Bilski v. Kappos, and AFAIK, has yet to address the question directly.
How is software unlike any other industry?
* Extremely low barrier of entry. When you can essentially develop a product for free, filling a patent is often unfordable. Hence, they benefit large established players against small competitors - especially those who don't seek a commercial gain (see multiple Open Source projects)
* Fast paced development. For many industries, 20 years is a limited period of time. For software, it's an eternity. Patents are supposed to convince inventors to open up their inventions in exchange for a limited monopoly. 20 years from now, how will the H.264 patents benefit society?
* Patents are not a inalienable right - they're a right designed to promote innovation. Anyone who knows the software industry knows its completely absurd to say that patents are a condition for innovation.
"If people had understood how patents would be granted when most of today's ideas were invented and had taken out patents, the industry would be at a complete standstill today."
--Bill Gates (1991)
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Why not? How is software unlike any other industry? If you're going to go on that old exception about algorithms and "all software is math," then that argument has lost many times and is unlikely to ever succeed. You're going to need a really good policy argument to explain why we should strip IP protection from a multi-trillion dollar industry, particularly in this economy.
Software isn't inherently undeserving of patent protection, but it is presently inappropriate to grant patents in that field.
The purpose of patents is to encourage the invention, disclosure, and bringing to market, of patentable inventions (i.e. novel, nonobvious, useful, etc.) which otherwise would not have been invented, disclosed, and brought to market. It's an artificial subsidy, and should only be applied where it is necessary, and never where it is redundant, because there are costs involved. In most cases it's not really possible to tell, particularly on the level of a specific patent for a specific invention. However, the software industry is fabulously inventive, is very good at bringing things to market, and almost inevitably seems to involve disclosure, at least to a person having ordinary skill in the art.
Frankly, the software industry doesn't need patents. It isn't being spurred on to greater heights of inventiveness, etc. by the availability of patents. In fact, the costs of patents (read broadly; not just the cost of getting one, but the minefield) are probably dragging it down. We'd better achieve the desired goals of the patent system if we didn't grant patents in that field. At least not for the time being. Eventually, the industry may settle down, and it would become appropriate to grant patents in the field, but that time isn't now. Business methods are the same sort of thing; patents aren't acting as a necessary incentive, and aren't doing more good than harm.
So one of the reasons we should strip those protections is to turn a multi-trillion dollar industry into something even bigger. We don't need to chain ourselves to anchors in this economy.
-- This and all my posts are in the public domain. I am a lawyer. I am not your lawyer, and this is not legal advice.
I've got to be honest here. I really liked the idea of MeeGo, but I'm almost beginning to feel embarrassed to even talk about the OS given the fact that the project was announced 9 months ago, was based on two existing OSes that were usable, and still doesn't have any handset hardware shipping with it. Heck -- as far as I know the functionality of MeeGo on the n900 isn't even up to par with Maemo.
Anyhow, getting back to the point of this post, I wonder how the Oracle/Google kerfuffule is affecting Meego. If MeeGo were mature enough to ship on hardware, I could see a persuasive argument being made against Android. The uncertainty around the Java base of Android might convince some hardware manufacturers to try building their next toys on top of MeeGo. The problem is that I don't get the perception that we're going to see anything shipping w/MeeGo soon, and by the time that comes to pass, Google and Oracle will likely have worked out some kind of deal in mediation -- Groklaw has already noted that the two parties have agreed to hire an external mediator to sort out their issues.
Of course, there's something even worse than MeeGo missing this opportunity to grab a little marketshare: Android losing marketshare. Looking out at the landscape right now, Android is the only thing standing between you and a completely proprietary OS running on your mobile device. Think about it.
Sure, I was okay running whatever dinky OS they wanted to put on my old cell phone. It didn't even take pictures, and I only made calls and sent txts with the thing. But the problem is that our cell phones are now being used to store tons of private data. I'd wager that, Megabyte for Megabyte, for a large number of people there is more personal data stored on their cell phone than on their laptop. Just as I run FOSS on my laptop, I'd really like to run FOSS on my mobile devices.
So while I don't expect Nokia to go bail-out Google, it's worth considering the fact that Google is holding its own here. Hopefully Nokia and Intel can crank on MeeGo and bring another powerful FOSS mobile OS to the party. We're all waiting with baited breath.
coding is life
Small electronics also have an extremely low barrier of entry. Should they also be unpatentable as a field?
Compared to 'free', it's damn high.
Additionally, I think a blanket judgement that all software development has an extremely low barrier of entry is a bit broad. There's a lot of money that gets spent on software development - is your position that it's all wasted, since you could essentially accomplish the same for free?
Dumping money into a project merely accelerates it - it's not a barrier to entry. And that acceleration provides the advantage you need - reaching the market sooner. There's no need for patents.
And finally, there's no requirement that someone get a patent, and since the patent system is supposed to encourage public disclosure as opposed to keeping trade secrets, it's really irrelevant to open source.
Except that many patents are 1) bad (too broad, for example) or 2) have prior art, and OSS projects don't have the funds to fight them.
But for many other industries, 20 years is an eternity. But no one's calling for the abolishment of patents on, say, dermatological products, or nanotechnology. In fact, while 20 years may be a short time in mature industries, when those same industries were young, development was very fast.
Maybe they shouldn't. That's not really an argument for patents.
The Wright Brothers made their first powered flights in 1904. 7 years later, there were dozens of different types of planes of myriad designs in operation in WWI. But no one was calling for the abolishment of patents on airplanes.
Are you kidding?
The creation of the Manufacturer's Aircraft Association was
crucial to the U.S. government because the two major patent holders, the
Wright Company and the Curtiss Company, had effectively blocked the building
of any new airplanes, which were desperately needed as the United States was
entering World War I.
http://www.essentialdrugs.org/edrug/archive/200203/msg00040.php
http://en.wikipedia.org/wiki/The_Wright_brothers_patent_war#Patent_war
Yes, lots of people did. And it was extremely prejudicial to the industry. The only reason it wasn't more, it's because nobody respected them and the courts failed to uphold them.
Actually, they're designed to promote efficient innovation. People innovated before patents existed: they just kept everything as a trade secret. As a result, people had to keep re-inventing the same solutions since they never got shared.
Which is irrelevant for software, since by the time they can be used, they're already useless and have been re-invented.
As for the claim that patents aren't needed in the software industry, because look how innovative it is... you do realize that there are software patents, right? So, it's a bit odd to claim "see how fast this industry with patent protection is developing? Therefore, it doesn't need patent protection."
That would be true if 1) all innovative soft. companies had many patents, which is clearly not true 2) there existed no countries without software patents.
How about the full quote? Deliberately clipping off the contradictory clause is not just misleading, it's lying.
I'm sorry, I got it in that form. On the other hand, I don't see how it takes away from my point. Just because Microsoft specifically (which had the luck to enter the "patent market" very soon) has a solution for themselves, doesn't mean it doesn't hurt the industry as a whole, as my part of the quote says.
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