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Android maker says Microsoft uses the patent system only when its products "stop succeeding"

There's plenty of accusations flying around in the smartphone market these days of intellectual property abuse, bad patents, and IP violations.  Who is good and who is evil depends on who you believe.  On the one side is Google, Inc. (GOOG), makers of the world's best-selling smartphone OS, Android -- and its hardware partners like Samsung Electronics Comp., Ltd.'s (KS:005930).  

On the other side are companies like Microsoft Corp. (MSFT) who hope to force Google and its partners into lucrative licensing contracts [1][2][3] -- or companies like Apple, Inc. (AAPL) that hope to remove its Android products from the market [1][2][3][4] [5][6][7][8] [9][10][11].  In Both Microsoft and Apple's cases, their weapon of choice is IP.

I. Google Says Microsoft is Free-Riding on Android's Success

Understandably, Google isn't happy about this situation.  In an interview with the San Francisco Chronicle, Tim Porter, Google's general counsel on patent matters, comments, "This is a tactic that Microsoft has used in the past, with Linux, for example. When their products stop succeeding in the marketplace, when they get marginalized, as is happening now with Android, they use the large patent portfolio they've built up to get revenue from the success of other companies' products."

Windows Phone Mango
Google says Microsoft is a sore loser who is trying to piggyback on its success due to Microsoft's own inability to compete on the smartphone market [Source: Engadget]

Google's comment that Microsoft is standing on the shoulders of its success, is almost the polar opposite of a recent comment made by Microsoft's general counsel Horacio Gutiérrez who argued, "The [Android] 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...In doing that, [Google has] really stood on the shoulder of companies like Microsoft who made all these billions of dollars in investments."

As for Mr. Gutiérrez' comment that the cross-licensing and lawsuits were part of a natural and healthy adjustment process, he points out that Microsoft itself didn't have to endure that with Windows, despite a wealth of prior art.

Mr. Porter comments:

Microsoft was our age when it got its first software patent. I don't think they experienced this kind of litigation in a period when they were disrupting the established order. So I don't think it's historically inevitable.

The period of intense patent assertions (against things like the steam engine) resulted in decades-long periods of stagnation. Innovation only took off when the patents expired.

So what I think we're hoping to avoid is this intense focus on litigation to the degree that we all stop innovating.

Google's attorney does raise some good points in that regard.  Microsoft is still struggling with the legacy of an infamous 1991 memo by Bill Gates, in which he warned that had software been patentable in the early days of the computers, "the industry would be at a complete standstill."  In that same interview, Mr. Gates expressed fear that "some large company will patent some obvious thing" and "take as much of our profits as they want" via litigation and forced licensing.

Bill Gates head scratcher
[Source: Business Insider]

Today Microsoft awkwardly finds itself in that role of the big company, who is taking big profits and trying to defend its patents -- some of which are seemingly obvious.  For example, Microsoft has a patent on display icons showing an image is loading on a webpage, and a patent on loading text before images, to speed up page load times.

Google's subsidiary Motorola Mobility has refused Microsoft's licensing demands and has made it clear that it will fight Microsoft in court, if necessary.  Google is already in just such a battle with Apple.

II. Google Promises to Aggressively Battle Apple -- And Microsoft, if Necessary

Microsoft is not alone in having to explain away statements of its past.  After accusing Android of being a "stolen product", Apple was left trying to explain away why it lifted ideas from from Xerox Corp.'s (XRX) PARC operating system in its hit Mac computers.  And it also had an interview of its own to try to explain away, in which late CEO Steven P. Jobs remarked, "Picasso had a saying - 'Good artists copy, great artists steal.' And we have always been shameless about stealing great ideas."  

Apple recently obtained a second patent on the swipe unlock gesture, a feature that was available on many previous devices, including Neonode Inc.'s (NEON) N1m -- a phone which launched in 2005.

In his interview, Mr. Porter complains that a big part of the problem is that obvious patents or patents where there's prior art are not rejected at the U.S. Patent and Trademark Office, but rather have to be eliminated via litigation.  He remarks, "Unfortunately, the way it works is you don't know what patents cover until courts declare that in litigation. What that means is people have to make decisions about whether to fight or whether to reach agreements."

Mr. Porter also confirms that Google's recent sale of patents to top Android handset maker HTC Corp. (TPE:2498) was designed as a counterstrike to Apple.  States Google, "We've said in the past that we aggressively stand behind our partners and want to defend the Android ecosystem. I think that transaction was definitely part of that."

In the interview, Google makes an interesting case, arguing that the biggest problem with the patent system arises from patents that were granted in a lax era in the late 1990s and early 2000s, prior to a 2007 Supreme Court decision which forced the USPTO to be more careful in what kind of patents it allowed.  

Patents wide
Google says the patent system was at its worse in the late 90s and early 00s.
[Source: InvestorsEye]

Concludes Mr. Porter:

But I think what many people can agree on is the current system is broken and there are a large number of software patents out there fueling litigation that resulted from a 10- or 15-year period when the issuance of software patents was too lax.

Things that seemed obvious made it through the office until 2007, when the Supreme Court finally said that the patent examiners could use common sense.

But Mr. Porter says that his company is a realist, and if it has to play ball, it will play ball.  He concludes, "Google is a relatively young company, and we have a smaller patent portfolio than many others. So it's certainly true that part of our intent in buying these portfolios is to increase our ability to protect ourselves when people assert patents against us or our partners."

Samsung and Apple are currently under investigation by the European Union for abusing the patent system in their plethora of suits and countersuits.

For further listening (or reading) on the topic of the issues with the U.S. patent system, we highly recommend the program "When Patents Attack" by National Public Radio special This American Life.  The program is pretty pertinent as it chronicles the world's biggest patent troll -- Intellectual Ventures.  A company that was founded by none other than former Microsoft chief technical officer Nathan Myrhvold.

Source: San Francisco Chronicle

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RE: Google and Patents
By JasonMick on 11/7/2011 1:45:32 PM , Rating: 4
Until Google is willing to pony up and stand behind the device OEMs in court, they do not deserve to comment.

It's like complaining about politics and then refusing to vote.

To be fair, it is pretty much doing what you suggest there. It handed "patent-poor" HTC several patents as part of a cheap sale, which Google even admits (see above) was designed to protect the OEM. HTC is now suing Apple with those patents.

It's also tried to buy several patent catalogs (e.g. the Nortel IP), though it's largely been beat out by some enormous bids from Apple/MSFT and others.

An interesting side note:
Sony is remarkably well positioned in this mess, as it makes several distinctive Android smart phones AND bought in on the Nortel IP and thus has a stronger hand to prevent Microsoft/Apple from suing it.

Notice Sony isn't MENTIONED in Microsoft's list of who it's suing or licensing:

Coincidence? Unlikely.

RE: Google and Patents
By Shig on 11/7/2011 2:14:48 PM , Rating: 1
Everyone loses in our current patent system.

RE: Google and Patents
By Taft12 on 11/8/2011 10:27:27 AM , Rating: 1
Not everyone loses!,_Inc.#RIM_patent_...

(please don't take this as support for software patents - everyone is well aware it's horseshit)

RE: Google and Patents
By Daemyion on 11/7/2011 2:40:42 PM , Rating: 2
Sony already has a cross-licensing agreement in place with Microsoft.[1]

I think that what the op was referring to was the fact that it's considered industry standard to have an indemnity clause in enterprise software contracts. The fact that Google doesn't have one with it's OEMs means it doesn't want to face the legal battle by itself.

Also, before one brings up the matter of Android's license (the GPL) and Google's inability to indemnify through that, one should remember that Google licenses the Android ecosystem separately and could, if it wanted, add the clause to those contracts.


RE: Google and Patents
By Daemyion on 11/7/2011 2:46:27 PM , Rating: 2
A more reputed source:
-- Notice the deal directly addresses Windows CE patents

Also, isn't about time someone "licenses" an edit button?

RE: Google and Patents
By zzzgz5 on 11/7/2011 4:08:27 PM , Rating: 3
I'd suggest that if Google trusted those patents to be upheld in court, they wouldn't have Given/Sold them to anyone.

Sounds to me as if the patents weren't of much value to Google.

The Patent system leaves much to be desired, yet all of these companies are playing on the same legal turf. To claim one company has an unfair advantage over the other isn't a valid argument. For Google to suggest " We're a young company with fewer patents and they're picking on me " is pretty lame.

If instead they claim the patents are invalid, then man up and go toe-to-toe with MS and Apple. Otherwise it's just hot air from a tired old windbag.

RE: Google and Patents
By Black1969ta on 11/8/2011 2:02:48 AM , Rating: 2
Sounds to me as if the patents weren't of much value to Google.

On the Contrary, It merely means that keeping a valuable OEM is more valuable, does it matter which patent you own when you have no facilities to manufacture products? excluding Patent Troll companies!

RE: Google and Patents
By Labotomizer on 11/7/2011 4:41:32 PM , Rating: 2
Microsoft tried to include Google in the purchase of the Nortel Patents. Instead Google decided they would rather have all those to themselves. Stop trying to make them look like saints.

The entire reason handset makers are vulnerable is because Google hides behind giving away Android, leaving all the responsibility for licensing in the hands of the OEMs. If Google would actually license the software then there wouldn't be a problem. It sounds more like Google is a sore loser because they screwed up by not joining the consortium that purchased Nortel, and other, patent pools.

RE: Google and Patents
By matty123 on 11/7/2011 5:08:40 PM , Rating: 3
Not so sure that's true but I could be wrong...

At the same time, Microsoft began to complain that the auction could result in a termination of the existing licensing agreements they had on the Nortel patents . And while they never specifically mentioned Google, it was pretty clear that they did not want Google winning — such a victory would eliminate at least some of Microsoft’s patent leverage over Android .

But this complaining was odd since we had heard that the existing licensing agreement on the Nortel patents would have to be honored by any winning bidder . So what was Microsoft complaining about? At least some believe Microsoft was just playing mind games at this point — mind games which would later come into play.

While much of the press after the auction focused on the Rockstar group’s win, the court documents make it very clear that it was actually Apple that won in partnership with Rockstar. Apple was the only group that had not dropped out. Again, they staked the Rockstar group to ensure a victory for the stronger player. Why was Rockstar the stronger player? Because of the other companies involved. RIM, EMC, Ericsson, Sony, and yes, Microsoft.

All of those groups together had the cash and clout to break Google’s will. And with Microsoft, there was clearly the desire.

But why on Earth was Microsoft doing bidding on patents they already had licensing rights to? That’s not yet clear. But one has to assume that they simply did not want Google winning them — at all.

Even if Microsoft maintained licensing rights to the patents, a Google win would ensure that it would be a lot harder to sue Android and its OEM partners for other patent infringements. So it sure looks like Microsoft teamed up with longtime enemy Apple to ensure victory .

Now I don't deny I quoted pretty selectivly from the article but ultimatly it looks like microsoft helped buy the patents purely so they could sue android OEM's otherwise why buy patents that they have already paid license fees for and also I don't believe there was ever an offer to team up with google.??


RE: Google and Patents
By Labotomizer on 11/7/2011 6:00:03 PM , Rating: 3
According to Microsoft it was because they wanted to prevent any one company from having full control over those patents. I do know they offered to allow Google into the purchasing consortium and Google turned them down in favor of trying to get those patents for themselves. I don't have any illusions that any company is "good" or "evil". They do what they have to in order to survive and they will spin anything to make themselves look the best they possibly can. I'm sure the full story behind the Nortel buyout will never be completely known.

But I know Eric Schmidt actually commented on being approached by Microsoft to be part of the consortium to buy those patents. He tried to spin it so Google looked like the good guy by turning it down. But how can we know how Google would have used those patents? The best thing for the industry are these patent pools that are starting to show up, at least under our current system. And Google didn't want to join that patent pool for whatever reason, good or ill.

RE: Google and Patents
By matty123 on 11/7/2011 6:39:58 PM , Rating: 1
But apple and the other companies would anyway have brought the patents apple alone contributed $2.6 Billion, the logic I can't understand is microsoft paying for patents that they already have licenses for, the only two possibilities I can see is that either microsoft wanted to sue people for infringing or prevent android from escaping the legal issues it already has with microsoft {this seems most likely seeing how much money microsoft makes off android and how many android OEM's it's suing} or they wanted to own the patents which is a real possibility but I consider unlikely because as mentioned they already have a compulsory licensing agreement.

Now I agree I am not saying google is a good company and microsoft a bad one, I use windows on all my home PC's and love it, have played around with linux but it's not really my thing, but at the moment microsoft is behaving like a child, suing the competition because there products arn't doing well.

This is one of the patents microsoft is using to sue android, this is absurd and it's ridicolous that microsoft would even patent something like this, this doesn't drive innovation and if it cost microsoft billions in R&D they have incompetent people working for them.

A browser remotely retrieves electronic documents from a remote computer network for viewing by a user. For enhancing responsiveness, the browser initially displays an electronic document without a background image so that the electronic document is initially displayed more quickly. The browser also prioritizes downloading of embedded images of the document by their incorporation in the currently visible portion of the electronic document. Further, the browser dynamically creates additional connections for retrieving resources incorporated into the electronic document from the remote computer network.

Another absurd one.

A computer system and method for highlighting and selecting elements of electronic documents is disclosed. In one embodiment, a selection area identifies an initial selection of data, and one or more selection handles appear on the selection area to allow dynamic resizing of the selection area to select a larger or smaller portion of data or number of items.

Now I appreciate that some ideas truly are great but I don't think the vast vast majority of software patents are, through in fairness the other patents are worded a bit to pompously for me to quite grasp maybe they hold more water, but just the fact that microsoft thinks this is something they should patent and own puts me off the.


RE: Google and Patents
By Labotomizer on 11/7/2011 7:28:59 PM , Rating: 2
I agree, those are absurd. The actual implementation of code should be what is available for patent perhaps. Not the overall idea of what it could do. The way some patents are worded seems crazy.

As for why Microsoft contributed? My understanding Google was going to put up more than any one company was willing to put up and therefore they all worked together to put the money up. I think Microsoft joined in because Google didn't want to. Microsoft also can't use those patents in a suit because, ultimately, they don't own those patents. A consortium does. That other company could sue but likely will enter into license agreements. So rather than Google protecting the OEMs by joining the consortium they instead left them with another company they'll likely have to pay licensing fees to. Sad.

RE: Google and Patents
By matty123 on 11/7/2011 8:11:33 PM , Rating: 2
I agree, those are absurd. The actual implementation of code should be what is available for patent perhaps. Not the overall idea of what it could do. The way some patents are worded seems crazy.

Agreed on this point, I agree the way the code is used should be patentable but not {and I think this is where things have gone wrong the last couple of years} the use of the idea. I blame apple in this regard for all their absurd and frivilous lawsuits against android OEM's, they have all patent holders {Microsoft included} jumping about obsessed with proctecting the most absurd ideas in the world {through to be fair my research on this is limited this is just what I had gathered from things I have read}.

Good point that microsoft can't sue android OEM's over the patents but it must be noted that google did team up with intel in the bidding wars and that it was very widely speculated and expected that the patents would be sold to google at the initial offer of $900 million, as far as I read google in collaboration with intel went all the way up to $4.5 billion over 4 and a half times the expected value of the patents and this on top of the $12.5 billion google is paying for motorola mobility it's not to great a strech to say google could possibly not afford the patents.

Your points are solid and good but I am just not inclined to put that much faith in microsoft at the moment, while I greatly respect most of the products and have used all the OS's since MS-DOS {back in the day} and all the iterations of office and a whole bunch of their other products, I believe android is doing a good thing for the mobile lanscape and while I use an iphone I don't like the overly aggresive campaign microsoft and apple {admittidely microsoft are far better than apple since they at least license their IP apple just wants to destroy the competition} are waging against android seemingly largely because of it's success.

RE: Google and Patents
By matty123 on 11/7/2011 6:44:28 PM , Rating: 1
Sorry I meant to post this one aswell, this one takes the cake in my opinion it's almost funny that they are actually trying to assert rights to something as absurd as this.

Described herein is a portable computer having a limited display area. An Internet or other hypermedia browser executes on the portable computer to load and display content in a content viewing area. During times when the browser is loading content, the browser displays a temporary, animated graphic element over the content viewing area. The graphic element is removed after the content is loaded, allowing unobstructed viewing of the loaded content.

Link: Same as above

RE: Google and Patents
By Reclaimer77 on 11/7/2011 7:03:31 PM , Rating: 1
The entire reason handset makers are vulnerable is because Google hides behind giving away Android, leaving all the responsibility for licensing in the hands of the OEMs. If Google would actually license the software then there wouldn't be a problem. It sounds more like Google is a sore loser because they screwed up by not joining the consortium that purchased Nortel, and other, patent pools.

Practically everything Google offers is free. Google has built an empire of not charging the end users one red cent. So I disagree that they are "hiding" by giving Android away. It's simply Google's prevailing business philosophy. Get Android into the hands of the consumer, and through the use of Android, other Google services can be leveraged through that mobile device. That earns them far more of a profit than licensing the OS to OEM's.

RE: Google and Patents
By Labotomizer on 11/7/2011 7:31:24 PM , Rating: 2
Normally, yes. But in this case the OEMs would benefit from buying the OS from Google and allowing the defense of intellectual property fall to Google. Instead Google is giving away the OS and can say "well, we're not responsible for the final product so you can't come after us". Android would benefit from being sold and licensed by Google, in addition Google would have more control over Android allowing them to give a better overall experience. My Droid 2 was a f'in nightmare. It made my HD2 with WinMo 6.1 seem like a super stable platform, which is scary.

RE: Google and Patents
By TakinYourPoints on 11/8/2011 3:42:15 AM , Rating: 2
Microsoft tried to include Google in the purchase of the Nortel Patents. Instead Google decided they would rather have all those to themselves. Stop trying to make them look like saints.

The entire reason handset makers are vulnerable is because Google hides behind giving away Android, leaving all the responsibility for licensing in the hands of the OEMs. If Google would actually license the software then there wouldn't be a problem. It sounds more like Google is a sore loser because they screwed up by not joining the consortium that purchased Nortel, and other, patent pools.

If I could upvote this more I would.

Either way, we'll see how their purchase of Motorola Mobility will help Google going forward. They majorly screwed up not having a good patent portfolio, and hanging their hardware partners out to dry after the fact is disgusting. Rumors of HTC buying WebOS makes so much sense, I imagine some of the top management there is livid at the position they've been put into.

People are deluding themselves if they think "popularity" is the sole reason others are suing Google. Litigation means nothing if it can't actually be backed up in court, and right now Google doesn't have a leg to stand up on and it is their own fault.

"If they're going to pirate somebody, we want it to be us rather than somebody else." -- Microsoft Business Group President Jeff Raikes

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