Microsoft Suggests Android Violates Its Patents... But Gets HTC To Buy A License

from the say-what-now? dept

Wed, Apr 28th 2010 12:03pm — Mike Masnick

Ah, the patent games Microsoft plays. For years, it's spread FUD, claiming that open source operating systems, such as Linux, violate its patents -- though it has never detailed what patents or really sued anyone directly over those patents (though some have argued that it has done so with a couple patents tangentially). Now it appears that Microsoft is also claiming that Google's Android violates its patents. Of course, it's not doing so by going after Google. Instead, it's part of what came out in an announcement concerning Microsoft licensing certain patents to HTC specifically to allow HTC to run Android.

Seems a bit strange, right? Why should Microsoft have any say in whether or not HTC can put Google's Android operating system on its phones. The whole thing seems even odder when you realize that HTC was, for a long time, one of the major makers of smartphones running Windows Mobile operating system. But, the complicating factor here might be Apple. Apple, of course, famously went on the patent offensive and sued HTC over its Android phones a couple months ago. So now, with Microsoft doing this deal, it seems to very publicly be entering the patent fight between Apple and Google, which for bizarre reasons is playing out with HTC as the pawn getting bounced around between them all.

Of course, Microsoft's press announcement on this particular deal is hilarious in how disingenuous it is:

The licensing agreement with HTC underscores the important role IP plays in ensuring a healthy and vibrant IT ecosystem.

Uh, no. It underscores the exact opposite. It underscores just how totally screwed up the smartphone market is because of the absolutely ridiculous patent thicket that's been built up around pretty much everything that goes into a smartphone. This deal doesn't show "the important role IP plays." It shows how a big company that has nothing whatsoever to do with a particular fight can suddenly throw its weight around on the topic in an attempt to cause confusion in the marketplace and potentially scare off competitors. It's the exact opposite of what the patent system is supposed to do.

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Filed Under: patents
Companies: htc, microsoft

32 Comments

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Jon Renaut (profile), 28 Apr 2010 @ 10:21am

This is completely insane
I have no idea whether or not Android violates Microsoft patents. I don't really care. But, for the sake of argument, let's say it does.

What does this have to do with HTC? It seems that Microsoft has two options here. They can go after Google over the patents, and either kill Android or clear Android. Or they can shut up and try to make a useful product.

Since Microsoft hasn't stopped Google from distributing Android, doesn't it make sense that HTC is in the clear for using it? How could HTC possibly be found liable in any way for using a product from another company in good faith? Why does Microsoft even have the right to license the abuse of their patents this way?

This is all just absurd.
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- chris (profile), 28 Apr 2010 @ 12:12pm
  
  Re: This is completely insane
  What does this have to do with HTC?
  
  HTC didn't have the money to fight in court, like google, apple, or motorola would and/or HTC's previous partnership with MS gives MS something to point at and declare infringement.
  
  once you rope HTC into a deal, even if no money changes hands, you can then declare victory. if google or apple call you out, you just retort by saying "if our claim is invalid, why did HTC settle?
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- Modplan (profile), 28 Apr 2010 @ 12:27pm
  
  Re: This is completely insane
  They obviously know if they went after Google they'd lose. Rather than risk having patents invalidated, go after the smaller player shipping the product and bully them.
  
  All in the hope to either slow down competitors or to leech off of them.
  
  Either way, the tactic is to shut out and bully competitors, not any genuine use of patents as protections of real inventions.
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- Kingster (profile), 28 Apr 2010 @ 1:37pm
  
  Re: This is completely insane
  It has to do with HTC, because they implemented the OS, which is licensed under the Apache 2.0 license... That license makes the licensee responsible for any patent violations... Read it here.. Specifically item 7:
  7. Disclaimer of Warranty. Unless required by applicable law or agreed to in writing, Licensor provides the Work (and each Contributor provides its Contributions) on an "AS IS" BASIS, WITHOUT WARRANTIES OR CONDITIONS OF ANY KIND, either express or implied, including, without limitation, any warranties or conditions of TITLE, NON-INFRINGEMENT, MERCHANTABILITY, or FITNESS FOR A PARTICULAR PURPOSE. You are solely responsible for determining the appropriateness of using or redistributing the Work and assume any risks associated with Your exercise of permissions under this License.
  So, until HTC implemented it, there wasn't really anyone to go after. And if Apple/Microsoft went after the other implementers (Motorola and Samsung), they'd likely get screwed in a counter-suit regarding patents, then we'd end up with some silly cross-licensing deal that screws the consumer, again.
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  - Jon Renaut (profile), 28 Apr 2010 @ 4:49pm
    
    Re: Re: This is completely insane
    Interesting. Does that mean I can make an unauthorized copy of the latest Lady Gaga single and release it under an Apache 2.0 license, leaving all the liability on whoever downloads it?
    
    Seriously, there is a big difference between "implementing" and "installing". Is there a base Android that you can just install with no modifications, leaving the liability with Google? And does this really stand up in court, this "we're not responsible for jack, you take all liability by agreeing to the license"?
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- Big Al, 28 Apr 2010 @ 3:44pm
  
  Re: This is completely insane
  Of course, the main reason behind this is the same one behind the Linux patent FUD. It's to try to get business to invest in handsets with the upcoming Windows Phone 7 system rather than in a 'patent violating' system that could 'disappear under a mountain of litigation'.
  Standard MS business move.
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  - Anonymous Coward, 28 Apr 2010 @ 5:36pm
    
    Re: Re: This is completely insane
    bingo
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Anonymous Coward, 28 Apr 2010 @ 12:17pm

Where's Google in all this? Surely if they released an OS and got companies to use it, they made some guarantees about it -- for instance, that those who used it wouldn't be encumbered with more licensing fees out of the blue.

And surely, if Microsoft (a major competitor) is profiting unfairly from Google's products, while making those products less marketable by hiking the prices (to both companies and end users) they'd be wise enough to react somehow.

Really, Google's passiveness regarding IP is what will ruin them in the end, imho..
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Designerfx (profile), 28 Apr 2010 @ 12:36pm

WOW
wow. way to go MS. When you could have been smart, and gone after apple, you know, your primary competitor for basically all of your products? Instead you after a single manufacturer of linux devices, because you hate linux, and cut off your nose to spite your face.
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- Mike42 (profile), 28 Apr 2010 @ 2:03pm
  
  Re: WOW
  Apple doesn't compete with Microsoft. They have completely different customer bases. Plus, Microsoft owns a big chunk of Apple.
  Linux, on the other hand, is uncontrolled and disruptive. Microsoft has been trying to slow the adoption of Linux since the SCO lawsuit started.
  As Linux gets better (and OMG has it gotten better!), it is a massive threat to Microsoft. Not to Apple, though. The customer base is too technophobic to even approach a Linux box for the next 10 years or so. Microsoft has about 5 left before a really good distro puts a huge dent in their profits.
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  - senshikaze (profile), 28 Apr 2010 @ 2:49pm
    
    Re: Re: WOW
    God I hope not. Imagine all the idiots sing linux. and then suddenly we wil have viri aplenty. hell no. MS can keep the idiots.
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    - vivaelamor (profile), 28 Apr 2010 @ 3:23pm
      
      Re: Re: Re: WOW
      "God I hope not. Imagine all the idiots sing linux. and then suddenly we wil have viri aplenty."
      
      Not quite. If there were a successful Linux virus due to the increase in popularity amongst non techies, it would still have little, if any, impact on those keeping to good security practices. More non techies using Linux really does have no downside unless people want to be elitist and complain about newbies asking questions.
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      - senshikaze (profile), 29 Apr 2010 @ 1:25pm
        
        Re: Re: Re: Re: WOW
        but..but.. elitism is all i have left!
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  - Designerfx (profile), 28 Apr 2010 @ 3:23pm
    
    Re: Re: WOW
    how do they not compete? different customer bases yes but same product category: OS's.
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    - Mike42 (profile), 29 Apr 2010 @ 6:47am
      
      Re: Re: Re: WOW
      Microsoft sells an OS and office software. Apple sells their platform which includes an OS. So, no, not the same category.
      
      If you don't believe me, show me a piece of non-Apple hardware running OS-X with Apple's blessing.
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  - Dowap, 29 Apr 2010 @ 9:13am
    
    Re: Re: WOW
    "Apple doesn't compete with Microsoft. They have completely different customer bases. Plus, Microsoft owns a big chunk of Apple."
    
    Where the hell did you get this from? Whatever you are smoking send me some.
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Anonymous Coward, 28 Apr 2010 @ 12:44pm

Imagine how much more and cheaper gizmos we would have if we could do away with the fallacy of "intellectual property." All the gazillions of dollars and incalculable man hours wasted on dumbass court cases would then instead be put to productive uses.
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Freedom, 28 Apr 2010 @ 1:19pm

Android's Success...Alarm Bells at MS
Reading between the lines, this is a great way of indicating just how powerful the Android Platform has come in such a short amount of time.

What this says to me is that even though Apple is the current leader with their iPhone, that the Android is the real competitor of concern in the long run.

Microsoft was able to win the battle on the PC front in the past because it was the best balance of being open/centrally controlled. In today's world, it looks like Android is that best balance point and that puts Microsoft as nothing more than Apple Light.

Freedom
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- Anonymous Coward, 28 Apr 2010 @ 1:22pm
  
  Re: Android's Success...Alarm Bells at MS
  Yeah, it overtook IPhone yesterday in mobile web traffic.
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  - Chronno S. Trigger (profile), 28 Apr 2010 @ 1:50pm
    
    Re: Re: Android's Success...Alarm Bells at MS
    If this is true then that has to say something about the android OS. All I see in the news is Apple this and iPhone 4G that and iPad the other thing (this is why I can't confirm anything android). If the Android is kicking the iPhone's ass despite the lopsided reporting...
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    - senshikaze (profile), 28 Apr 2010 @ 2:52pm
      
      Re: Re: Re: Android's Success...Alarm Bells at MS
      well that is actually fairly normal. I don't know why but it seems most IT news source are super pro-Apple. Apple stuff is cool and all, but damn. there are other companies, you know, not named after a fruit.
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      - Derek Kerton (profile), 29 Apr 2010 @ 2:20am
        
        Re: Re: Re: Re: Android's Success...Alarm Bells at MS
        Well, also, the Android momentum is spread around multiple different handsets with different names, and from a variety of companies. It doesn't look as imposing as the single form-factor iPhone from a single stakeholder.
        
        Mytouch, Droid, Droid Eris, Nexus One, Google, HTC, Motorola, Blur, Timescape, Sony Ericsson Xperia x10, Sprint Evo, Acer Netbooks with Android, Tablets, and on and on. Put the buzz from all the Android news together, and tell me how iPhone compares.
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droslovinia (profile), 28 Apr 2010 @ 1:46pm

Say what?
So where is the evidence that "it overtook iPhone yesterday in mobile web traffic?" Not that I care all that much, since I have neither, but such claims should have some basis in reality that you might want to share.

Bigger question, if Android is supposedly a "derivative "of Microsoft's products, why is it so much better? It's like claiming that Enzo Ferrari owes you money because you have a rubber tree in your house! This is clearly no more than a nuisance lawsuit aimed at a company that might have insufficient cash reserves to fight them off without settling, and it's bound to blow up in their faces.
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- vivaelamor (profile), 28 Apr 2010 @ 3:28pm
  
  Re: Say what?
  "So where is the evidence that "it overtook iPhone yesterday in mobile web traffic?" Not that I care all that much, since I have neither, but such claims should have some basis in reality that you might want to share."
  
  This is the first result on google for android iphone web traffic. Not that I care that much, but if you're going to demand a citation perhaps you should do a two second search first.
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Anonymous Coward, 28 Apr 2010 @ 1:53pm

Under FRCP 20, can't Google join the lawsuit on the defendant's side due to 1) same transaction or occurrence and 2) common question of law or facts?

Also, can't Google intervene under FRCP 24?

It seems like Apple and Microsoft are attacking HTC because it's the easier target, and if they succeed, they'll be able to use the result in future cases under stare decisis. Wouldn't the smart move for Google be to jump in on the lawsuits and settle the issue now?
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Chronno S. Trigger (profile), 28 Apr 2010 @ 1:59pm

Update?
I found this article poking around Google News saying that Microsoft isn't claiming any kind of patent infringement for the android but came into agreement with HTC for their hardware. The article suggests that it's so HTC can put the Android OS on phones built for Windows Mobile.
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- senshikaze (profile), 28 Apr 2010 @ 2:54pm
  
  Re: Update?
  that was news to me too
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- Jon Renaut (profile), 28 Apr 2010 @ 4:51pm
  
  Re: Update?
  Did Microsoft subsidize part of HTC's research/development/whatever with the understanding that the phones would run a Microsoft OS? If so, then I can see why HTC should pay Microsoft. But that's totally unrelated to any patent issues, as far as I can tell.
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Anonymous Coward, 28 Apr 2010 @ 3:50pm

Re: Re: WOW
"Plus, Microsoft owns a big chunk of Apple."

Are you referencing the 4% investment in Apple ($150M non-voting stock) which Microsoft picked up in 1997? I believe this was divested in Sept 2000 and in Q1 2001.

The main reason why this investment happened was because of a 5 year cross-licensing IP arrangement, which Microsoft benefited greatly from. It was only at the beginning of FY 2002 when Apple announced the iPod. Perhaps this was timed as such so it was outside of the IP out of the cross-licensing arrangement.

I don't know of any other Apple stock is owned by Microsoft, and it's not to say it hasn't happened, it's just hasn't been publicized.
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Anonymous Coward, 28 Apr 2010 @ 5:30pm

Re: Re: Update?
>> Did Microsoft subsidize part of HTC's
>> research/development/whatever with the understanding
>> that the phones would run a Microsoft OS? If so, then
>> I can see why HTC should pay Microsoft. But that's
>> totally unrelated to any patent issues, as far as I can tell.

No. I think all HTC does is mass-produce a spec using overseas manufacturing capabilities. As for R&D/development, it's all theroy. However, HTC's US office (unsure if any real software development occurs at this site) is only 8 miles from Redmond.
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Ed, 29 Apr 2010 @ 7:55pm

Maybe helping?
Something that came to mind while I was reading this: does anyone think there's any possibility this will help save HTC from the Apple lawsuit. HTC has made a bunch of WinMo phones, and the lawsuit would hurt them, potentially cause issues for Microsoft. If they have licensed patents from Microsoft - somebody Apple won't touch - it could lead Apple to drop the suit. Just a thought.
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aikiwolfie (profile), 2 May 2010 @ 3:47pm

Software Patents Should Be Illegal
This case of Microsoft and Apple Vs Google via HTC is exactly why software patents should be illegal. At the very least if a company wishes to accuse another of violating it's patents then it should be forced to produce the proof before strong arming the accused into a "secret" deal.
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