Microsoft Echoes Rambus, Transmeta in Defense of Android Lawsuits
October 31, 2011 2:23 PM
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Microsoft poses a similar argument as Transmeta and Rambus before it -- it invested money in smartphone research, now it should be able to force licensing and/or sue competitors to compensate for its sales shortcomings.
(Source: Wikimedia Commons)
Google is "standing on the shoulders" of others -- Horacio Gutiérrez, Microsoft General Counsel
In the smartphone market, Microsoft Corp. (
) has undergone a transformation from a company that makes most of its money off facilitating the sale of physical products to end consumers and businesses, to a company that
makes most of its money
pursuing intellectual property enforcement
The approach isn't altogether surprising. Microsoft has fallen from holding nearly a quarter of the smartphone market, to having less than 3 percent of the market locked down. In short, a year into the Windows Phone 7.x project Microsoft is
thus far lagging in sales
in the smartphone market despite having
-- but poorly marketed -- products.
Thus Microsoft has followed in the footsteps of past companies,
such as Transmeta
) and turned to a "forced licensing" approach of trying to force more successful competitors to pay to license its IP under threat of lawsuit [
Microsoft General Counsel, Horacio Gutiérrez, raises a familiar argument in
, commenting that Google Inc. (
) is "standing on the shoulders" of Microsoft and other smartphone IP holders with its Android mobile operating system.
This is a familiar argument, as it's similar to the argument raised by Transmeta and Rambus -- quite successfully in fact.
Mr. Gutiérrez contends, there's essentially nothing wrong with the American intellectual property system, and that the spate of recent lawsuits is just the market "readjusting" itself to innovative new products.
Every time there are these technologies that are really disruptive, there are patent cases. People who lived in that particular time would look and say, "What a mess, we certainly must live in the worst time from an (intellectual property) perspective. The system is broken and something has to be done to fix it."
That's the situation we're in right now. If you think of a mobile phone or a tablet computer today, they're not your father's or your grandfather's cell phone.
The devices have evolved and become so much more powerful, because they've added a number of technologies that pre-existed the new devices. In general, they use software to become general-purpose computers.
As we've seen historically, there is a period of unrest and a period of readjustment, until the claims on the ownership of different pieces of technology are well known. There's a period of actually licensing and cross-licensing that makes these issues disappear into the background.
When you buy the device as a consumer, you get it out of the box and enjoy it immediately. What you don't see is an invisible web of licensing and cross-licensing arrangements that actually make it possible.
So licensing is not some nefarious thing that people should be worried about. Licensing is, in fact, the solution to the patent problem that people are reacting so negatively about.
Of course, again, this is precisely the kind of arguments Rambus and Transmeta made to justify their tactics. But as the analogy to these firms shows, Mr. Gutiérrez is at least correct in that there's been a lot of historical precedence for this kind of use of IP.
Microsoft's perspective echoes that of Rambus and Transmeta. It spent the money researching the technology, and now a more successful competitor is profiting off a similar implementation. So it should be able to gain revenue secondhand by forcing licensing. States Mr. Gutiérrez:
[T]here are all these other features that just make the phone much more efficient, things that are embedded deeply in the operating system. Microsoft has invested for decades more money than anyone else in research and development directed toward the efficiency of operating systems. These devices have moved from having a rudimentary phone system to being a full-fledged computer, with a sophisticated, modern operating system.
In doing that, they have really stood on the shoulder of companies like Microsoft who made all these billions of dollars in investments.
Mr. Gutiérrez defends even his company's most obvious patents -- such as two GUI patents, the first of which involve loading (and displaying) webpage content before images to load webpages faster, and the second of which involves displaying a loading animation as the images load. These patents -- U.S. Patent Nos.
used to force
Barnes & Noble, Inc. (
an Android tablet-maker
, into a licensing deal.
Like Apple, Microsoft contends that patenting GUI features is acceptable. Microsoft is suing or forcing licensing from Android manufacturers using a patent on displaying an animation for loading images in a browser.
He argues that patents only seem obvious because people aren't educated enough to understand them. He states, "Many times when you express those ideas at a high level, they seem obvious to anyone who really doesn't understand the particular ways in which certain effects are achieved in software. [W]e believe they're solid patents."
This could be a good approach for Apple, Inc. (
) to take. While Apple's goals are a bit different than Microsoft's (Apple wants to
ban Android from sales
, rather than profit off forced licensing like Microsoft), it also has a fondness for patenting GUI animations [
] and then using them to sue Google.
With Microsoft and Apple are seemingly in a race to patent seemingly obvious GUI components and sue or ban anyone who outsells them in the market, the validity of software patents will likely face increasing scrutiny.
But Mr. Gutiérrez says that software patents are similar to hardware patents, so they either are both valid, or both invalid. He comments:
But I think the most important part here is that a lot of the innovation that is happening today is really happening in the software space. Many things that earlier were implemented in hardware - think of telephone switching and circuits - are now implemented in software.
So the question of whether software should be patentable is, in a sense, the same as asking whether a significant part of the technological innovation happening nowadays should receive patent protection.
But what if Microsoft used its GUI patents to sue Apple? Well that's unlikely as the companies have essentially a patent "truce" -- they cross-license their IP to each other. As a result they can focus their efforts on suing or banning other parties, without having to worry about attacks from each other.
As an interesting side note, a company that has been labelled the world's largest patent troll --
-- was founded by Microsoft's former chief technology officer Nathan Myhrvold. Mr. Myrhvold played a pivotal role in directing the future direction of intellectual property efforts at Microsoft, during his time with the company in the 1990s.
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JasonMick on Campaign to Promote His Views
10/31/2011 8:06:55 PM
The author of this drivel is obviously on campaign to promote his views. This whine about licensing is pathetic. The author needs to grow up from the free-for-all socialistic mentality and face reality.
Comparing Microsoft licensing wins with those of Rambus is outright wrong. It seems that the autor has conveniently forgotten that Rambus cornered the industry by participating on open standards committees only to turn around and patenting (or not disclosing preexisting patents) the technology that later became the standard. Rambus then waited for the technology to go mainstream and targeted the industry players with litigations for back fees, damages, and future licensing revenues. How is this like Microsoft? I beg to differ. There is no comparison.
Microsoft allows others to innovate even though many "borrow" Microsoft's patented IP. Microsoft is very forgiving and even supportive, especially with little guys. Partly because Microsoft became the easy target for patent trolls and the anti-monopoly advocates now accusing Microsoft of all sins. There has been a long-standing rhetoric in the industry regarding open-source in general and Linux-based clones in partucular. A lot of them knowingly or unintentionally infringe on existing patents. The risks were well defined and known for years. And yet, Google decided to go forward with their Andriod with little consideration for this important ecosystem requirement with fanboi fanfares. They got slapped by Apple and Oracle. Using different angles of attack they lawfully ventured to restore the balance. Google is now scrambling to offer some sort of an IP shield by clumsy acquisitions... Wake up, Google. The bliss of a free ride might be coming to an end.
Microsoft, in many of these cases acts as a party that guarantees decent protection from risks of potential IP litigation with its patent portfolio. Access to their patents will allow for better and innovative products. Microsoft idemnifies its licensees from risks such as expensive and painful litigation and attempts to restores fairness. And now, somehow, Microsoft is bad again. What a bunch of crap!
Jason Mick's smear campaign against Microsoft on the pages of DailyTech is getting beyond tolerable.
RE: JasonMick on Campaign to Promote His Views
10/31/2011 10:38:57 PM
Many of Mick's "articles" are agenda-driven. Here he is butt-hurt because his love, Android, is facing legal troubles. Others times, it is porn. I haven't seen a "tech" writer do as many articles about porn as Mick. He comes across as a 4-chan kiddy with the pedobear pics and "u mad bro" Photoshop crayola-quality pics.
RE: JasonMick on Campaign to Promote His Views
11/1/2011 11:01:08 PM
Then how about you both STFU and go make your own tech website? No? Then quit yer whining! I happen to like reading daily tech and never comment because i enjoy the inter-bitchfest between all of you but seriously...grow up, get your own damn website, and listen to what your mothers told you. "If you cant say something nice dont say nothing at all"
"What would I do? I'd shut it down and give the money back to the shareholders." -- Michael Dell, after being asked what to do with Apple Computer in 1997
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