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.

Comments

Perhaps the patents are legit, valid patents?

[Anonymous Coward]

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.

Re:Perhaps the patents are legit, valid patents?

[postbigbang]

Yet no one litigates to find out. Why? Imagine trying to invalidate dozens of patents, one at a time. Find out what they are, then find patches around them. How many patents can there be to be used against the Linux-Android kernel?

Re:Perhaps the patents are legit, valid patents?

[EraserMouseMan]

The big question... When will Apple go after Google?

Re:Perhaps the patents are legit, valid patents?

[Insanity Defense]

Why is no one mentioning the possibility that M$'s patents might be legit, novel patents that don't cover something frivolous?

Probably due to the words of a Microsoft executive. When Ballmer first started the whole "Linux violates our patents and some one has to pay" campaign people asked which patents precisely. The executive indicated that he wouldn't say as they might be challenged and invalidated. If Microsft is so sure why not tell so it can be fixed?

It is like the whole SCO fiasco claiming that Linux violated their Unix copyrights (which they have now been ruled twice in courts not to own) but they would never say what code it was out of fear that the "code would be replaced".

Both sets lawsuits seem to me to be based on the idea of never letting the alleged infringement be known and fixed so that they can collect eternal tolls based on their unsupported allegations.

Re:Perhaps the patents are legit, valid patents?

[LordLimecat]

Given that every patent Microshit's gotten in the past 20 years has been the result of patent-slamming and abuse of the system?

Surely a statement that bold requires a source.

Re:Perhaps the patents are legit, valid patents?

[S.O.B.]

Surely a statement that bold requires a source.

A source? On Slashdot????

You're kidding, right?

Re:Perhaps the patents are legit, valid patents?

[zill]

Extraordinary claims require extraordinary evidence, unless, of course, you are bashing Microsoft on Slashdot.

Re:Perhaps the patents are legit, valid patents?

[jc42]

Allegedly 42 for just the kernel just from MS.

But the main comment about such numbers has been "[citation needed]". MS's patent-violation claims seems to be trade secrets. We can't recode the purported violations, because we don't know where in the code they are and what specific patent they violate. MS won't tell us.

This is part of the "patent troll" concept, and it's why people are classifying MS's patent "agreements" as shakedowns and a protection racket.

Myself, I'd be happy to rewrite any of my code so as to avoid patent and/or copyright violations. As an experienced coder, I can usually come up with several ways to do any particular task. But to do that in a way that violates patents or copyrights, I have to know what they are, and how they violate someone's patent or copyright. This information has become nearly impossible to get from claimants, other than by spending millions of dollars on legal expenses.

The whole "IP" fuss in the US is essentially due to the change in the laws some time back, so that patents can be written in legalese rather than engineerese, making them incomprehensible to anyone but lawyers. And often not even to lawyers, who often respond to questions with "I don't know what that means; we'll have to ask the courts." Again, millions of dollars and many lost years before we get an answer.

Copyright is even more bizarre, with corporations even making copyright claims on nothing at all, or blank lines. Some time back, when SCO claimed a specific number of copyright violations in the linux code, someone did a bit of grepping, and reported that the number agreed almost exactly with the count of "/*" and "*/" lines in the code. But again, SCO never actually told us which lines were in violation of a copyright, making it impossible to rewrite them so they didn't infringe.

Anyone know a fast, efficient way to find out exactly what lines of code are in violation of some corporation's patents or copyrights? Until we can quickly determine that information, they can continue their protection racket unhindered by legal concerns.

Re:Perhaps the patents are legit, valid patents?

[Bruce Perens]

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.

Because that's absurd.

First, they're software patents. I'm sure lots of folks will be willing to trot out the arguments against those if you actually haven't heard them before, but it should suffice to say that such things should not be granted.

Second, because Microsoft does not have much of a history of innovation. I can break that up into pieces: Their software products have in general been follow-ons to other people's software products. Visicalc -> Lotus 1-2-3 -> Excel, for example. They haven't been innovators in either the mobile telephony industry, or its predecessor the PDA industry. Their products were definitely late-runs in those industry.

Third, because they have a well-known history of filing patents on known art.

Re:Perhaps the patents are legit, valid patents?

[protektor]

The reason Microsoft doesn't want to release the patent numbers is for the same reason someone mentioned. It is too expensive for a company to research 45+ patents. It is a snap for the Open Source community to research 45+ patents and get prior art for all of them. Microsoft knows that if their patents aren't rock solid and iron clad that the Open Source community will rip them to shreds as they have done before. Microsoft doesn't stand a chance in hell of keeping the patents once they are public and they know it. Microsoft knows they didn't do a deep prior art search because it is expensive, but 100,000+ people searching for prior art and all of a sudden it isn't a needle in a haystack. It's a thin layer of straw with a giant magnet to find the needle. Microsoft knows this and Microsoft's lawyers know this. They have absolutely no intention of allowing the army of the Open Source community anywhere near them to try and attack them. Microsoft isn't stupid and they know they can't take on the army of the Open Source community intent on smashing Microsoft's patents. It would the death of a thousand cuts and Microsoft has no plans to open that nasty can of worms and huge set of problems on themselves. This is exactly why they hide everything but make outrageous claims. It is the same tactics Microsoft has used for years and the tactics that got Microsoft convicted of being an illegal monopoly in the US and the EU.

Can you imagine what would happen if every time a software patent was filed and before it was granted it was made known to the Open Source community? I would bet money that very very few of the software patents, if any, would survive the assault on them. Corporations know this and they want absolutely no part of seeing thousands of people working to invalid a patent. They will do almost anything to prevent that because they know doing deep prior art research is expensive and no one ever does a serious deep prior art research. Lawyers aren't paid to tell clients, sorry someone else was there before you. They are paid to make sure the patent is granted. This is the exact reason the patent office is so broke.

There is absolutely nothing you can invent that someone else at the same time isn't working on. If you are trying to solve a problem then you can be guaranteed that someone else out there is trying to solve the exact same problem. You see this over and over and over again in history for radio, tv, electricity to cities, lights and the list goes on and on. Patents in this day and age do absolutely nothing but stifle innovation. No inventor or company ever goes through the patents to try and find a new invention or way to do something. Companies actively tell inventors and programmers not to go looking at patents. So if no one is looking at them and they invent the same exact thing then it definitively isn't novel to someone in the industry because they did the exact same thing all on their own with no idea of what someone else did. Patents have only screwed commerce and society over by putting a serious drag on science and technologies. Don't even think medicine is different either. The exact same thing happens there with drugs. In fact if you look at drug companies SEC filings you will see they spend more on advertising instead of R&D. R&D is one of their lowest costs. So patents don't help the drug industry either. Drug companies are never all alone in inventing drugs. If you think that then you don't know the drug industry at all. They are all competing with each other to be the first to patent some drug to treat something. They all know what the other companies are researching but don't know their progress level. So even in drugs patents are not needed. Drug companies would still fight to be the first to market to make that first to market money and get entrenched before any other drug company.

Why should FOSS advocates

[sessamoid]

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.

Re:Why should FOSS advocates

[king neckbeard]

I think encouraging the development of said formulas is a bigger concern than disclosure. That said, it doesn't appear that patents have worked well for either or those goals.

The obvious is being missed:

[gcnaddict]

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.

Re:The obvious is being missed:

[protektor]

Wrong on all counts. Clearly you have never been involved in lawsuits with large corporations and nuance lawsuits. I have been involved in both. When a company is being sued there are two things they look at. The first what is the expense to prove in court that they are correct and how does that cost relate to the product they are selling. The second is how much is the cost to settle the case and make it go away so they can get back to their core business. A large majority of the time it is simpler to say here take some money and stop bothering me, now go away and don't come back. In a lawsuit with Microsoft I would bet that almost every single time that it is cheaper to pay Microsoft to go away rather than fight them in a lawsuit and I would bet Microsoft knows this and prices their extortion...I mean settlement to reflect this fact. I see corporations using their size to intimidate smaller companies all the time.

Despite their claim of Do No Evil

[OverlordQ]

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.

Re:Despite their claim of Do No Evil

[SpinyNorman]

Yes, but that's a bit too simplistic.

If Microsoft's moves were harming Android adoption, the time to act would be now. If Google/Android loses handset manufacturer allegiance then it might be hard/impossible to regain it later.

Of course the reverse is true too - if Microsoft's shakedown of the handset manufacturers doesn't appear to be having much affect on Android usage, then why should Google care?

Another consideration is that Android truly might be infringing on Microsoft's patents, in which case there's not much short-term alternative to paying one way or another.

Re:Despite their claim of Do No Evil

[protektor]

Clearly Microsoft doesn't believe that the patents will stand up to scrutiny otherwise they would publicly announce the patents and then go after each company violating them. That Microsoft keeps everything a secret says tons about what Microsoft thinks of their patents being able to hold up to extremely close scrutiny by 100,000+ people. If you only have to convince 10-20 people that is far easier to do than try and convince 100,000+ people that you have great patents and there is no way to invalidate them.

MS friendly pop-media would have a field day

[walterbyrd]

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.

Re:Not Sco at all

[NullProg]

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.

I doubt that. All the companies that have licensed the patents for their Android devices also ship Windows devices. More than likely Microsoft threatened them over Windows pricing if they didn't agree to the patents. See the monopoly trial transcripts on Microsoft's use of predatory pricing tactics.

The one Android using company that didn't license the patents also doesn't ship any Windows versions. According to Barnes and Noble the patents are weak. See

http://yro.slashdot.org/story/11/04/28/039255/BampN-Responds-To-Microsofts-Android-Suit

Food for thought,
Enjoy.

Considering the source...

[Petersko]

"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.

The relevant question is:

[drolli]

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 really are different than others

[Rob Y.]

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.

Re:Software patents really are different than othe

[Rockoon]

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?