Microsoft-Samsung Licensing Deal Tells Us Nothing About The Facts, Just About The FUD
from the trust-us-we're-not-bluffing dept
As Bessen and Meurer's book "Patent Failure" points out, one of the biggest problems with software patents is their lack of well-defined boundaries. This makes it very hard to tell whether newly-written code is infringing on existing patents or not. The threat of treble damages for wilful infringement removes any incentive to try to find out.On the other hand, many software patents have been issued for basic programming techniques that are obvious to most competent coders, which makes it almost impossible not to infringe on them. Their obviousness means that it might be possible to find prior art to have them invalidated, but that takes time – and lots of money.
Put these two facts together, and you have the perfect situation for patent bullying. Holders of software patents will claim that some of your code infringes on their ideas, and that they could, if they wished, sue you and/or get your product withdrawn from the market. But generous types that they are, they will instead offer a licensing deal that solves all your problems.
The great thing about these licensing deals is that no details need be given afterwards – indeed that's usually a condition of them. So the patent holder can use them to insinuate to the rest of the world that fabulous sums are involved for multiple patent infringements, and that other people had better sign up quick before they get sued for even more.
Back in 2007, Microsoft tried to deploy this approach against companies – and users - using free software, which represented an increasing threat to Microsoft's dominance:
"We live in a world where we honor, and support the honoring of, intellectual property," says Ballmer in an interview. FOSS patrons are going to have to "play by the same rules as the rest of the business," he insists. "What's fair is fair."Significantly, though, Microsoft would never reveal what exactly those 235 patents were, despite repeated calls for them to be detailed so that people could examine the validity of Microsoft's claims. Because of this, the free software world called Microsoft's bluff, refusing to enter into licensing deals; no one was sued.
Microsoft General Counsel Brad Smith and licensing chief Horacio Gutierrez sat down with Fortune recently to map out their strategy for getting FOSS users to pay royalties. Revealing the precise figure for the first time, they state that FOSS infringes on no fewer than 235 Microsoft patents.
More recently, Microsoft has tried again, this time approaching manufacturers with products based on Android, which has free software such as Linux at its heart. Once more, claims that Android infringed on Microsoft's software patents were never specific, but this time it's been more successful in lining up licensing deals with major players, including one with HTC in April 2010, one with Casio, a few weeks ago and one with Samsung this week.
Most news outlets have been proclaiming the latter in particular as a huge blow against Android. But let's just look at what the press release actually says:
Microsoft announced today that it has signed a definitive agreement with Samsung Electronics Co. Ltd., to cross-license the patent portfolios of both companies, providing broad coverage for each company’s products. Under the terms of the agreement, Microsoft will receive royalties for Samsung’s mobile phones and tablets running the Android mobile platform. In addition, the companies agreed to cooperate in the development and marketing of Windows Phone.
Everyone has focused on the part about Microsoft receiving royalties for Samsung's Android products, which would imply that Android does, indeed, infringe on Microsoft's patents. But the press release made no mention of the figures involved, or what precisely they were for. Samsung might have agreed to pay $5 per unit, or 5 cents. And for all we know, that “development and marketing of Windows Phone” might even involve Microsoft paying, say, $5 or 5 cents per Android unit back to Samsung.
In other words, this might well be much ado about nothing, the main purpose of which is to provide Microsoft with more “evidence” that it can wave at other companies when it goes calling for more licensing deals. A separate post by Microsoft's Brad Smith and Horacio Gutierrez spells that out for us:
In the context of all the attention intellectual property matters have received in recent months, it’s worth taking a moment to reflect on the meaning and impact of these agreements. The Samsung license agreement marks the seventh agreement Microsoft has signed in the past three months with hardware manufacturers that use Android as an operating system for their smartphones and tablets. The previous six were with Acer, General Dynamics Itronix, Onkyo, Velocity Micro, ViewSonic and Wistron.In other words: “Look, all these companies can't possibly be wrong. There's clearly a big patent problem with Android, and anyone basing products around it had better sign up too.”
These agreements prove that licensing works. They show what can be achieved when companies sit down and address intellectual property issues in a responsible manner. The rapid growth of the technology industry, and its continued fast pace of innovation are founded on mutual respect for IP. Intellectual property continues to provide the engine that incentivizes research and development, leading to inventions that put new products and services in the hands of millions of consumers and businesses.
Why might Samsung go along with this kind of thing? Well, because we don't know the details of that licensing deal, it might be receiving more than it pays out – unlikely, but possible. More likely is the situation where Microsoft agreed to help it in various ways with the Windows Phone products that it also produces – after all, Samsung just wants to sell hardware, and doesn't really care which software it runs. There are plenty of legitimate ways in which Microsoft could make Samsung's acquiescence in this licensing game attractive.
And let's not forget that Samsung is currently embroiled in a much more serious dispute around the world with Apple over its Android products. It's a basic rule that you don't fight wars on two fronts if you can help it, so settling with Microsoft – especially if the terms were favourable – makes good sense from a business point of view.
To summarise, then, this high-profile deal tells us nothing about the real terms of the agreement; all we have is a reinforced appearance that Android infringes somehow on Microsoft's (unspecified) software patents – pure FUD (Fear, Uncertainty and Doubt).
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Filed Under: android, fud, licensing, patents
Companies: google, microsoft, samsung
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Wait
glyn moody?
Never mind, carry on good sir.
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Did you even bother to read who wrote the article?
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Two companies have worked out a business deal.
The two parties are not talking about any details, which is what happens in the vast majority of such deals.
Despite the absence of details, all of this proves that IP is being used to beat up other companies in this business segment.
I can only surmise that many who lambaste business deals such as these are not generally aware of the concept known as "due diligence".
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Where in the article does it say that anything is 'proven'.
Various possibilities and suspicions are raised, but no one said that anything has been proven.
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There is nothing to check into.
Yes two companies entered an agreement but as the story points out it has all the outward appearances of being less than ideal for at least one of the parties, and contrary to what may be claimed that is NOT beneficial for the industry at large. Yes we don't know the details and it in fact may be an awesome deal but that appears to be improbable.
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I have negotiated and marshalled through execution numerous domestic and international business arrangements of the type and complexity that seem to be involved in this particular matter, and not one of them ever bypassed the step of a thorough due diligence before sitting down at the negotiating table.
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Samsung could be hurt, it was hurt in other instances and don't want to fight, most companies don't fight or try to prove anything, it is cheaper to just pay off, that is what happened in the 80's when big corporations suffered a great backlash from public opinion and courts everywhere trashed them, those where the rules of that time that endure to this day.
So due diligence means exactly nothing, because a) patents are not something that has clear line and b) it gets cheaper to settle the matter and pay whatever the otherside wants.
But it will be a short lived victory, because if other had prove anything is that they can adapt quickly to changing environments and will start patenting everything everywhere, then they will hurt American business even more.
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First it was the VCR, then it was digital CD's, and even before that it was LP's and automatic piano scripts. Give me a break.
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I Read the press release on Engadget
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(http://www.engadget.com/2011/09/28/microsoft-and-samsung-sitting-in-a-tree-patent-s-h-a-r -i-n-g/)
although it does cite 15$ as the rumor figure.
If I am remembering correctly HTC is going to be the one to go to war with microsoft armed with motorola's patents we will probably get the dirty details if that goes to trial which it probably will since microsoft has gotten a taste of those android sales and can't afford to back down now. its really a shame since htc was the one propping up windows mobile 6.5 while microsoft's mobile os stagnated. hopefully HTC takes it all the way they really dont have anything to lose they aren't a pc manufacture and windows mobile 7 is pretty much a sales bust. if microsoft is taking 5$ per handset
(http://articles.businessinsider.com/2011-05-27/tech/30077485_1_android-htc-tablet-market)
that is quite a chunk of change if there profit margins are 10-15% as the above article suggest on a say 500$ handset that is then subsidized by a carrier they are making 50$ per handset and microsoft is going after 7.50$ to 12.50 that is quite a bite.
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patent licensing used to shore up patent strength
This is precisely right. One of the Graham v. John Deere Co. factors that a patentee can use to argue that its patent is not obvious is "licenses showing industry respect for or acquiescence in the invention." (see In re Rouffet; I discuss this in my article Impact of Patent Licensing on Patent Litigation and Patent Office Proceedings.)
At least one district court has held that even the mere attempt to obtain a license under the patent is admissible evidence that is relevant to obviousness. (Amsted Indus. Inc. v. National Castings Inc., 16 U.S.P.Q.2d 1737, 1751
n.11 (N.D. Ill. 1990) (“[E]vidence reflecting the merits and profitability of the patented invention as seen through the eyes of a potential competitor in the industry [is] probative.”).)
Of course, this is largely nonsense--obtaining a license should not imply that they do so "out of respect for the strength of the patent" but rather "out of a desire to avoid the costs of litigation." (Pentec, Inc. v. Graphic Controls Corp., 776 F.2d 309, 316 (Fed. Cir. 1985).)
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Re: patent licensing used to shore up patent strength
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What to buy?
However, I don't think we're there yet, but who has yet to enter into a royalty agreement with Microsoft? HTC and Motorola, I believe. Anyone else?
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How much does Mike Masnick pay for your posts?
You might want to refund him on this one, you are sort of trying to create smoke and fire where there is in fact just someone standing have a smoke because it was banned inside buildings to smoke.
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However, GM has made it clear on his own blog that he gets paid to post on Techdirt. So I am wondering how much Mike pays for this stuff. I would think that some people here might find it interesting that Mike is in the "pay for opinion pieces" business. I wonder what sort of contract there is, and what the copyright issues are.
GM? Mike? Marcus? Nina? You guys want to spill the beans? A little truth goes a long way!
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To my way of thinking, compensation is not the issue. Rather, it is the crux of an argument that catches my attention, and it is only the argument that is relevant.
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Mr. Moody notes on his blog that he does receive some compensation from TD. OK, point noted...but so what? His arguments on issues must stand on their own merit, and compensation has absolutely nothing to do with merit.
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Since Mike or the paid posters are not forthcoming with the information, should we assume it is a horrible situation as Mr Moody suggests is happening with Samsung?
A little clarity would go a long way here. Too bad that Techdirt is fast to call on others to do so, but very slow to disclose their own business dealings.
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I put up the Registry of Interests to make it clear that any agendas people may perceive are entirely my own.
As a freelance writer, I pitch stories to editors: if they like them, I write them, they pay. If they don't, I either find someone else, don't write them - or put them up on my main blog. It's as simple as that - there's no formal contract anywhere.
As for copyright, what's that...?
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For transparency's sake, I included in my Registry of Interests the fact that Techdirt pays me, and that this is a simple journalistic exchange of words for money. There is no other aspect to the deal.
Whether I'm paid $1, $10, $100, or $1000 is irrelevant: it's just a question of scale, and a reflection of my ability to negotiate and Mike's willingness to agree. The exact figure makes no difference to the meaning of what I have written.
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code is code
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What I find completely disgusting about this statement is that Microsoft was able to build its business without any intervention of the patent system, as every coder or computer-savy person I knew was of the opinion that anything covered by copyright could not be patented. Had patents been available, Microsoft would probably be in the same shoes as Compaq is - a dead division of another company. Bill Gates himself has admitted as much.
Steve Balmer, and Microsoft in general, are truly an organization of honorless hypocrites, totally lacking any integrity, in my opinion.
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""We live in a world where we honor, and support the honoring of, intellectual property," says Ballmer in an interview."
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wow
i need answer too iPod | iPhone | iPad Gadget | Telephone Mobile
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