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Why No War Over MS's Android Patent Shakedown?
jfruhlinger writes "When challenged directly by Oracle over Android intellectual property, Google has proven itself a feisty opponent. So why is it sitting back and letting Microsoft shake down OEMs over its claims to own patents that Android infringes? A disheartened Tom Henderson thinks it's because Microsoft has been smart to go after the vendors rather than poke at Google directly. Still, he wonders when Google will get into the fight."
Glyn Moody thinks Google should join the fight as well.
Why is no one mentioning the possibility that M$'s patents might be legit, novel patents that don't cover something frivolous? That would be a damn fine reason to license the patents.
It's what's for breakfast. At least, for Microsoft.
The more you know, the more you have to say and the more you should listen.
be standing up and crying foul? MSFT is suing largely over patents that have nothing to do with the Linux kernel, but rather the software on top of it, much of which is closed and/or licensed by Google. It's not as if these OEMs are FOSS contributors who do valuable work then contribute it back to the open source community.
"No, no, no. Don't tug on that. You never know what it might be attached to."
With Microsoft shaking down the likes of Samsung, LG et all why not just wait for them to take Microsoft to the legal cleaners?
Besides the stupid patents are all operational functionality code. None really do anything that could be considered patentable anywhere except perhaps Texas...or Nevada and then only if you spend millions bribing judges and officials!
MS has been into the smartphone game nearly as long as Palm, I'm sure they have a plethora of patents while google is relatively new to the game, therefore they have little to defend themselves with. Is anyone actually surprised by this?
Android is a loss leader, and not worth a lot to Google. Google's patents are probably in their core business, search and advertising. Since a lawsuit would result in settlement and cross licensing, Google's patents are worth a lot more for keeping Microsoft out of that core business than saving HTC $5-15 per handset.
I'm going to leave two points for consideration:
1) as the first AC mentioned, the patents may be legitimate. In discussions about MS patent litigation, I've noted that Microsoft actually does a good job of leveraging patents over which it has ownership rather than simply letting them sit in a bank, so there's a good chance they're leveraging their options because Microsoft may actually be using these patents in Windows Phone 7.
2) Google needs a foothold in the mobile market. Even if this means OEMs have to pay Microsoft for patents Microsoft owns, I figure Google won't care simply because this means Google still has a foothold as both an advertisement platform and an application platform, which is something Google would be hard-pressed to challenge just for the sake of challenging royalties which manufacturers are willingly paying. After all, these OEMs have their own teams of lawyers, and these lawyers likely see something we don't, suggesting to us on the outside that Microsoft may actually have a valid claim to the patents in question.
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So why is it sitting back and letting Microsoft shake down OEMs over its claims to own patents that Android infringes?
Because Google is a Business. Litigation costs money. Business don't like spending money until they have to.
Your hair look like poop, Bob! - Wanker.
Google is letting Microsoft collect royalties so that when they do go after them, they can get a huge settlement deal. Defending patents is a very costly and time-consuming business. So it doesn't surprise me that Google is biding its time.
This is such a twisted and decietful summary/title, I threw up in my mouth a little...
This is a sign of how out of touch Microsoft is. Outside of their lucrative enterprise market, it seems their best solution for making money is to simply troll with their patent portfolio. The numbers I can find seem to show that the moneys they're collecting from these 'that's a nice android you got there, I'd hate to see something happen to it' payments outnumbers their revenues from Windows phones. That's just sad. Microsoft needs to be careful. There's a time bomb hidden in their business strategy, just waiting to go off. The same thing happened to IBM; they managed to re-invent themselves. Will Microsoft be able to do the same thing?
In the case of SCO though, the claims were obviously absurd.
In this case, careful review by a number of hardware makers has led them to pay Microsoft to license the patents. We may not know exactly what they are using but you can bet the companies paying Microsoft had to have pretty good proof before they simply handed over per-device fees to another company.
"There is more worth loving than we have strength to love." - Brian Jay Stanley
It's not Google's problem. Getting themselves involved has the potential of making matters worse for not only themselves but the OEM's as well.
Like one who seizes a dog by the ears is a passer-by who meddles in a quarrel not his own.
Proverbs 26:17
For the sake arguement lets suppose, Microsoft who has been making phones a lot longer than Google, actually has legit patents. The first Windows phone came out in 2003, and pocket pc goes back to 2000. Perhaps Google has completely disregarded said patents and Microsoft has them by the balls.
If Google were to ever fight back, the Microsoft friendly pop-media would have a field day.
The Microsoft friendly pop-media would scream, and cry, and carry-on, non-stop about how Google is abusing the legal system to preserve google's monopoly.
This sort of thing happens all the time.
Remember the big fuss that made when legal action was taken against Cisco for GPL violations? "The foss folks are a bunch of hypocrites! They complain when scox tries to protect it's IP rights, but they're the first to file a lawsuit against anybody else!"
How about Microsoft accusing Google of being a patent troll when Google tried to buy Nortel?
How about all the privacy accusations against Google, backed by Fackbook's biggest investor?
Of course Microsoft has a huge problem with any sort of monopoly. Not just the Google monopoly, remember Microsoft's recent attacks against IBM's monopoly - the TurboHercules scandal?
My all-time favorite was the massive fear campaign about the horrors of having one company (Netscape) controlling the critical browser market! Rags like "Infoworld" carried on about that for months. At the time, Netscape had a monopolistic 70% of the browser market - oh the horror! After Microsoft defeated Netscape, and MSIE went on to control about 90% of the browser market (at one time); the same ms-friendly rags saw no problem with that.
Microsoft loves to scream, and cry, about Microsoft competitors, who do the same sorts of things that msft does; even though msft is about 100X worse.
IF they refused, they would be in court for 5 to 10 years.
This would put them into bankruptcy.
Look, whatever else they may have done, Microsoft did have a huge hand in building the personal computing market from scratch, to put it mildly. It is inevitable that they would have a ton of patents on their technology, and since mobile computing is an extension of PC technology, it is inevitable that there will be a lot of overlap. Not to mention that they were also an early player in the smartphone market.
Now, given the size of their portfolio, there will be of course some trivial patents, but undoubtedly there will be some very good patents as well. Does it really make sense to fight them and try to show that *all* of them are invalid? Or try to prove that you don't infringe on them, when most things are done in certain ways pretty much because Windows did it that way and Windows was a de facto monopoly and everyone has been doing them that way, but you want to make a case saying "No, we don't do things that way"? It's a lot easier to just admit you're infringing and license the whole damn portfolio.
I think they'll let the hardware companies take the initial charge, and jump in only if it looks like it's hurting overall adoption. The phone & tablet makers are just adding the MS danegeld to the bottom line, and Android takeup doesn't seem to be hurting much for it.
Barnes & Noble, seeing the Nook as their enabler to sell you e-books ("Gillette strategy"), and so wanting to hold down their unit cost, refused to sign Microsoft's NDA, called out the patents in their suit as obvious, and explicitly accused them of trying to strangle Android adoption via patent trolling. I'm tempted to run out and buy a Nook Color just to thank them for flicking off the Monopolist.
SCOX(Q) DELENDA EST!!
Google won't get into the fight because they know they will lose. They fucked up big time and are happy to let the manufacturers take the fall.
Once they start waving the patents they just inherited around its time to really panic.
Not all software inventions consist of simple UI tweaks or IsNot operators
...and yet software patents are being granted on simple UI tweaks as well as true innovations costing millions in R&D. Instead of using the rare cases of the truly novel to justify the stupid, obvious stuff, why don't you make the case for changing the patentability laws to weed out the junk? Perhaps by dictating how much of a license fee can be charged. How can the patent office or Congress be okay with allowing royalties of 30-100% of the cost of WinMo7 for 'innovations' that involve a few lines among hundreds of millions of lines of code? Seriously, some attempt should be made to guarantee that licensing costs for software patents reflect the importance of the feature to the overall software product that contains it.
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which automatically makes them bullshit.
MS has been making mobile OS's for years, and they have patented everything they could. I am sure Android tromps on a huge number of these. You can fight software patents in general, but my guess is (have not studied) that by today's patent laws, this shake down is legit.
Nobody is mentioning either that Microsoft will never sue Google and risk losing a billion in revenue from shaking down makers. The fact is that makers love this. They pay a fee and get protection. This is what they'd have to do anyways if they didn't use Android. Android is the only really free option, and this fee is certainly better than paying for Windows 7 Mobile and not selling millions of units to boot.
Microsoft is happy, handset makers are happy enough to only pay $15 per phone. And Google doesn't care about Microsoft's little side game, because it effectively keeps MS out of a real phone competitor because the handset makers would quickly countersue and or enter joint deals and kill MS's billion dollar baby.
It's equilibrium. And with everyone fighting Apple which could easily overtake a crippled Android (and I love android to pieces, but they'd get crushed in a single generation of stagnation), it's a lose-lose to go to course with Apple laughing at it all.
I8-D
Just off the top of my head:
- They don't want the OEMS to run to google every time someone threatens them with patent lawsuits.
- Why stop Microsoft from pissing all over the OEMs? Does Google need OEM goodwill more than they would like Microsoft to have OEM ill-will?
- Maybe they want something from the OEMs to help them out that the OEMs aren't willing to agree to.
- Perhaps they don't want to escalate a patent war with Microsoft.
"Given that every patent Microshit's gotten in the past 20 years has been the result of patent-slamming and abuse of the system?"
You've regressed so far that you think misspelling "Microsoft" with the word "shit" in it is either creative, useful, funny, or relevant, so I'll forgive you just being wrong for the rest of your post.
Why does oracle not go after the manufacturing companies? I think they would all settle immediately. They would even plainly buy J2ME to put it on the device.
Software patents are a different kind of animal than other patents, and Microsoft's been on both ends of the evil spectrum in this regard.
Software patents are rarely used for simply collecting appropriate royalties on a software 'invention'. More commonly, they're either used to shake down rich companies (like Microsoft, who have been the victims of such trolls) or they're used in an anti-competitive manner (mainly by Microsoft) to punish companies that have the nerve to build successful products without using Microsoft (or Oracle, or...) software.
The VFAT patent is a case in point. Nobody uses VFAT because they think it's a great filesystem. No modern filesystem uses the patented VFAT 'dual-naming' system, but products have used VFAT because that's the easiest way to make products that need to connect to a computer work with 90+ percent of the computers out there. Royalties on VFAT should be struck down based on the non-innovative technology in question (basically a kludge to fix a broken filesystem). They should also be struck down based on their anti-competitive nature. VFAT royalties are a form of illegal tying to a monopoly product. As are any patents on CIFS, or other communications protocols built in to Windows.
But how about a so-called 'legitimate' software patent? In the case of a piece of patented hardware, somebody who wants to use that hardware in their invention will buy the hardware, which would come with a license to use the patent. In fact, they might have to buy the hardware from the patent-holder. There would be a cost involved, but it wouldn't be much more than the cost of the part without the patent license. Now look at the Android patents. There's a patent on displaying text in a web page prior to downloading the embeddded graphics. Leaving aside whether Microsoft actually 'invented' that, in less time than it took to type that sentence, I know how to implement it, using no Microsoft code. And yet Microsoft is charging $5 per unit for phones incorporating this (and a few other similarly trivial) patented inventions. And for a few dollars more, they'll sell you WinMo7, a full-blown platform of which the patented ideas are a negligible part. How about I buy the patented stuff for an appropriate fraction of the full $15 WinMo, and you can keep the rest? The purpose of charging these royalties is to make a free OS cost essentially as much as the Microsoft offering. But setting prices this way is anti-competitive. The Windows (and Office) monopolies already give MS several competitive steps up in entering new arenas where interaction with those products is important. But they want more. They always want more.
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Isn't there a sort of legal suit you can file to have something confirmed to be legal, to settle the question of whether an action is legal or not, proactively? I forget the name of it
Was it declaratory judgment by any chance?
Google removes any Imaginary Property from the Android released to the manufacturers and then makes it available in the Marketplace..
I wouldn't advise anyone to bet any money on them doing this though...
I'll see your Constitution and raise you a Queen.
Selling patents is inherently wrong, because it gives one company a monopoly over the IP that is being sold, while from the perspective of society, nothing is gained by the transaction.
In fact, it can be said that IP law and competition law are inherently in conflict in this sense.
I am just wondering why nobody seems to notice or acknowledge this conflict.
If Pandora's box is destined to be opened, *I* want to be the one to open it.
Do you know what kind of review they did? Either we comply with MS or we loose access to MS Windows and WP7 licenses and face litigation in US.
Remember these are mostly mobile makers we are talking about, who have no need of Windows licenses.
That leaves only WP7. So what if Microsoft threatens to withhold WP7 from a phone maker? What kind of threat is that? Mobile companies probably have to be given bribes just to MAKE them currently.
"There is more worth loving than we have strength to love." - Brian Jay Stanley
There's a patent on displaying text in a web page prior to downloading the embeddded graphics.
No, there is a patent on a METHOD of doing so.
Do you understand the difference?
"His name was James Damore."
Because most of them are also building other things that need Microsoft and rather than pick a fight with a supplier its simpler to roll over, sign the paperwork, then get the money from the consumer via price increase.
M$ will blow all their money chasing companies. Many of these companies will go broke, or dodge, creating more debt for M$ not profit.
Google merely has to sit back and enjoy the show, and the same with all the other (yes all the other) Linux embedded vendors.
Its analogous to a military tactic known as "The Soak Off" - let your enemy knacker themselves on a smaller, less important target, then pounce and destroy them.
all stolen from others.
its utter hypocrisy. the entire PC industry was founded on what would today be considered egregious IP theft.
Does anyone here still think patents for anything other than physical apparatus are a good idea?
If so, shame on you.
"Nine times out of ten, starting a fire is not the best way to solve the problem." - my wife
If a programmer invented it and another programmer invented the same exact thing and never ever saw the patent filed for it. The the process is trival and obvious to anyone in the field. There is nothing you can program that won't occure to another program as a way to solve a problem. It just isn't possible because of the way that computer languages have been created and taught. Someone will end up making the exact same method and code very close to what the patent claims was innovative. Programmers never look at patents but are accused of violating patents. That right there says the patent was obvious and trivial for someone in the field.
Microsoft wants a small payoff to leave Android alone, Oracle wants Davlik to disappear.
Paying off Microsoft doesn't present a problem unless the margins on hardware get much lower than they currently are and so long as carriers subsidize phones heavily that's not likely to happen. Replacing Davlik with a fully conformant JVM along with all of the associated redevelopment and testing both by Google and by 3rd party developers would kill the Android platform as well as ChromeOS and the entire Google plan for world domination. Letting Microsoft shake down the vendors for a bit of dosh just isn't the same level of threat.
Add into that the fact that Google started the Davlik fight with Sun who they thought they could beat and are now facing Oracle who they quite probably won't and Google may not be interested in starting another legal pissing match with a company their own size.
Google are very profitable, but also very vulnerable. The vast majority of their revenue is based around the success of their search tool and the fact that they're the only real player in town in terms of online advertising. They can't really afford to get into a fight to the death with both Oracle and Microsoft, especially with Apple starting to take action to block the import of HTC devices.
There's an argument that the whole problem with software patents is that they collapse that very difference. After all, the implementation of a software-idea is already protected through copyright (for a very, very long time!). What additional protection, then, do patents give?
What I never see discussed anywhere is why is this protection money applied worldwide? Software patents are from what I understand almost only accepted in USA. An important market for sure, but still only covers 7% of the worlds subscribers. Samsung (not even an american company) might be forced to pay 15$ in protection money to MS for EVERY PHONE sold. Am I missing something or is the entire world faced to pay up for (imho) a mistake made by 7% of the potential market?
If a programmer invented it and another programmer invented the same exact thing and never ever saw the patent filed for it. The the process is trival and obvious to anyone in the field. There is nothing you can program that won't occure to another program as a way to solve a problem. It just isn't possible because of the way that computer languages have been created and taught.Someone will end up making the exact same method and code very close to what the patent claims was innovative.
How is this different than other industries? If you come up with the exact same transmission system innovation for an automobile as one already patented, than any minor differences dont matter.
.. its the method of doing it that is patented and you are free to do it another way (better ways.. worse ways..) You are not prevented from providing long filename support by the patent.
Lets take Microsoft's long filename feature for legacy FAT
The only argument is that those other ways that arent covered wont be compatible with Microsoft's method, but thats exactly what patents are meant to protect! It is the INTENTION of patents to prevent you from providing a knock-off for the term of the patent. Thats exactly what they do in other industries and there is no reason for them not to also do them in this one. You may not like the fact that you cannot provide a Microsoft-compatible long filename system for legacy FAT, but do you also not like the fact that Joes Rusty Machinist Shop cannot just start making drop-in replicas of the latest Toyota hybrid transmission system?
Its the same fucking thing.. the only difference being that you arent a machinist.. that you are a software geek. I'm sure Joe would love to knock-off Toyota's shit too.
"His name was James Damore."
Lets take Microsoft's long filename feature for legacy FAT .. its the method of doing it that is patented and you are free to do it another way (better ways.. worse ways..) You are not prevented from providing long filename support by the patent.
The only argument is that those other ways that arent covered wont be compatible with Microsoft's method, but thats exactly what patents are meant to protect! It is the INTENTION of patents to prevent you from providing a knock-off for the term of the patent...
completely missing my point. The ONLY reason to use the FAT method is for compatibility. The ONLY reason to want compatibility is that Windows has a monopoly. Nobody's copying this method to improve their own filesystem. They need to copy Microsoft's crappy filesystem in order to remain in business. There was an antitrust ruling about that.
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The ONLY reason to use the FAT method is for compatibility.
ah, so its just like in the auto business then.. if you want to make compatible parts.. YOU NEED A LICENSE!
Get it yet? Thats the entire point of patents, and furthermore monopolies do not invalidate them.. in fact.. patents create monopolies by their definition, in all industries.
They need to copy Microsoft's crappy filesystem in order to remain in business. There was an antitrust ruling about that.
There was absolutely no anti-trust ruling dealing with either FAT or VFAT. Why are you making shit up?
"His name was James Damore."
Monopolies in which the owner was convicted of illegal abuse/tying have some limits. Sure, FAT/VFAT weren't specifically addressed, but the DOJ was supposed to be keeping a watch over this kind of thing. Besides, there's no player in the auto industry with the kind of monopoly Microsoft has in the PC industry.
I think the EU acutally insisted that MS wasn't allowed to use the CIFS wire protocols to keep other file servers from working with Windows. Of course, they don't have software patents over there. Good thing, that. Or are you saying it's a good thing that Microsoft is able to charge TomTom for the privelege of connecting their device to a PC? If you think that, then we just disagree.
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