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IP, Patent

Google: Battlefield Opponent Or Sitting Duck? Android Patent Assault Continues

Bill Snyder has an excellent article this morning about Microsoft’s war declaration against the Google-created Android OS. Snyder asks

Is Microsoft trying to kill Google’s Android OS by blasting lawsuits at device sellers like Barnes & Noble and device makers like Foxconn and Inventec? I don’t think so. The software giant is more likely trying to make a buck through licensing deals. That’s not to say winning business at gunpoint is a tactic I admire, but that’s very different than assuming that Redmond sees Android as a deadly threat and wants to fit it with a pair of cement shoes.

Via Why Microsoft declared war on Google over Android

Well, the point I made on a different blog is that infringement is a very fact-intensive inquiry, and that simply because a specific use of the Android OS results in an infringing device, it doesn’t necessarily follow that the Android OS (sitting on a shelf, doing nothing) also infringes the same patents.  Patents are directed at “things” and “actions,” and its possible that Android (when it’s doing nothing) doesn’t meet the description of any of the “things” claimed in Microsoft’s patents.

That aside, Microsoft probably could come up with a plausible theory that Google induces others to infringe its patents, subject it to liability under a different theory of infringement.  Granted, the inducement standard is currently being reconsidered by the Supremes, so this may present a less than attractive option.

But litigation against Google directly would also test the strength of their commitment to the open source philosophy in general.  In reaching a settlement, Google’s open source obligations might require it to insist on royalty-free licenses flowing “down-hill”; something Microsoft wouldn’t want to give away for free …  So ultimately, Snyder may be right that Microsoft is more interested in money than anything else.

Some other interesting points from Snyder:

… developers tell me that Google, at the very least, is guilty of carelessness. I can’t read anyone’s mind, but I find it hard to believe that a company as rich as Google is deliberately ripping off intellectual property.

I’m not sure what Google’s prosperity has to do with morality or the propensity to steal, but I would go at least a step further and suggest that they’re likely being intentionally careless in that they probably specifically avoid learning about the patent and other IP rights of others.

Snyder also quotes FOSS activist and litigation hawk Florian Mueller, who attributed some of Android’s woes to:

weakness of Google’s own patent portfolio, which is small and not sufficiently diversified to solve Android’s [intellectual property] problems with cross-licenses

True enough … Google wastes enough money on useless patents (like software for modifying their logo–which, in all likelihood, doesn’t even describe how Google using the concept), but when it comes to software that enterprises are building products around, Google is apparently content to hang them out to dry.

Snyder also discusses the broader issues that surface whenever stories like this come along:

The larger issue is the damage wrought by a patent system that encourages endless, expensive litigation over intellectual property rights. The system is particularly dangerous for smaller companies that lack the resources to fight lawsuits brought by much larger competitors.

I’d be curious to ask Snyder if the damage stems from encouragement of litigation, or from the expense of litigation? This is not so cut-and-dried as it may first appear.  Litigation is increasingly being funded by venture capital due to its expense. The presence of venture capital drives the need for higher returns, which forces patent owners to be more aggressive.  The aggression is apparently distasteful to anyone outside the battlefield, so they push the pendulum towards the defendants, making litigation more costly for patent owners (reducing penalties for infringement, making infringement more difficult to prove, making invalidity easier to prove, etc).  The increased cost increases the propensity of patent owners to seek out venture capital to fund the lawsuit.  The venture capitalists make up for this expense by giving the patent owners less and less of the pie (including a negative share, on occasion).

Meanwhile, litigation is encouraged because patent owners have almost no capacity to even approach manufacturers without subjecting themselves to a pre-emptive lawsuit.  Because this risk persists, even when manufacturers are willing to negotiate outside the umbrella of litigation, the presence of the risk nevertheless drives the negotiation, in some cases letting the proverbial tail wag the dog.

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Discussion

5 thoughts on “Google: Battlefield Opponent Or Sitting Duck? Android Patent Assault Continues

  1. This brings to mind a quote I once heard from (former Van Halen frontman) David Lee Roth: When asked how you know when you’ve “made it,” Roth responded: “When you can spell ‘subpoena’ without thinking about it.” The abundance of copyright and patent litigation volleyed against Android is testimony to its success. Time will tell whether or not it will be able to survive the onslaught.

    Posted by patent litigation | March 29, 2011, 2:03 pm

Trackbacks/Pingbacks

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