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To defend Android, Google must attack software patents (h-online.com)
104 points by brkcmd on July 11, 2011 | hide | past | web | favorite | 53 comments

"That is, Google could easily have gone higher with its bid: why didn't it?"

... Rich people get rich by spending wisely. Just because Google -has- money doesn't mean it should spend it on the first thing that comes along.

If they didn't buy something, it's because they thought the price was too high for the value it brought to them. It's pretty simple economics.


Also, the value of patent pool may be vastly different to the consortium than to Google. Basically, the value reflects how the buyer evaluates competitor's competetitive strength.

In this case, it may be the consortium considers Google a very strong competitor, while Google considers the consortium a somewhat less troubling competition.

The Apple consortium with Microsoft, RIM et al. can afford to go much higher up (have up to $100billion combined in cash. Intel+Google do have large deep pockets but how far could they take the cost up? Also wouldn't making it more expensive provided an added incentive to litigate or impose a licencing scheme to pay for the costs

At the end of the day, Google has to start to have a far more proactive approach protecting Android and Android related cases that essentially are forcing manufacturers to pay up for licences essentially for patent protection via Microsoft :/

Of course, but what I think the author meant to say, was that owning those patents should have been worth more than $4.5 billion to Google, as they are crucial to Android's success.

And deplorably, I think he's right.

I'd like to see them take that $4bn they would've spent on Nortel patents and use it for a patent reform campaign. I'm sure that kind of money could buy a lot of votes in DC.

The fact that your last sentence is uncontroversial is really depressing. Everyone accepts that 'lobbying' is a polite word for 'bribery' and should be unacceptable in a modern democracy. We should all be on the damn streets about this.

I completely agree with you. My sister in law was talking about working for a high-profile lobbying group because "That's how real political change happens." I pretty much felt sick to my stomach right then and there.

Unfortunately, most of us (myself included) realize that's just the way things are now. I'm not defending this position - just commenting on it.

That's just the way things are and nobody cares, or at least: no-one visible cares.

The only people who appear to be speaking out on issues like this are Anonymous. What does that say?

This thought, expanded (Lawrence Lessig on the subject:) http://www.thenation.com/article/how-get-our-democracy-back?...

In the US, limiting lobbying is tough (impossible?) without undermining the First Amendment right to petition.

I totally agree lobbying is a problem - perhaps one of the largest (along with our two party political polarization). A solution that doesn't break the US Constitution would be awesome.

(Edit: added second paragraph.)

Though I agree with your stance, the Citizens United supreme court case basically made it law that "money is speech".

Some folks knew the Roberts supreme court would essentially sell the US to corporate interests back in 2005 when he was confirmed.

Yes, I look back fondly on the innocent days of 2009 when corporations couldn't influence politics.

Citizens United was a nonprofit organization specifically formed to express the views of its members. You can't stop that without trampling all over the 1st Amendment. And you really wouldn't like the negation of "money is speech". Sure, you can support candidate Smith: just don't spend any money in the process, including but not limited to campaign supplies, web hosting, and the imputed value of your labor.

Well, the biggest problem IMO is not lobbying itself, but the campaign contributions which often really is bribery.

How else do you propose anyone can put an end to the software patent system?

yes, but lobbists determine which streets get paved..

While I agree with your sentiment, buying votes in DC is not the best approach IMHO. I would like to see them indemnify their partners and then go berserker on the patent protection racket mafia.

[added] Google is in a pretty unique position to do this:

1) They have relatively few patents, so destroying software patents would cause little collateral damage to them.

2) They have financial resources, with $4B set aside for purchasing (or destroying) software patents.

3) They have a lot of smart people resources (in house and hired guns) - the Google v. Oracle lawsuit is showing this.


Patents are just one of many ways that government destroys and prevents wealth. Government is increasingly a net loss when it grows beyond providing basic protections from physical violence and a trustworthy, competent judiciary. Long-term, Google might better spend its money working to reduce the overall size of government by funding Austrian educational efforts and libertarian candidates.

I'm starting to realize that the success of Android is, in part, a triumph of open source and that's got people scared. And now their attacking it with everything they've got.

It has nothing to do with the Open Source part and everything to do with the "triumph" part. Android devices are selling very well. Its competitors couldn't care less how it's built or by whom. Their response is the same regardless: they use every tool in the shed to not only make themselves better, but to act as a drag on their competitors.

Open has a lot to do with it - Android is a great OS by itself but because it's free, it has hurt RIM, MS and Apple's profits quite a bit. Hence why they've banded up and decided to throw everything they have at it.

I think you meant Nokia not Apple. Apple's profits have been world beating and they sold pretty much every iPad and iPhone 4 they could make for the last year.

Which is not to say Android isn't a threat to Apple, clearly it's the largest threat, but just that it hasn't seriously affected Apple's profits.

Android is only a threat to Apple's profits, but not its market. There are things that vertical integration provides which are unique and of value to a decent sized population. For instance, it is hard for Motorola to replace a handset which is past its warranty to build brand loyalty. Or hardware only manufacturers cannot provide free or cheap training sessions which may be seem inscrutable to us, but are meaningful to a lot of people.

Apple's and Google's models are pretty orthogonal, and there is space for both. Sure they both compete aggressively, but it's everybody else whose models are in a mess.

Well, the question is if Apple would be making even more if they didn't have to compete with Android.

Since they have been mostly supply constrained I would say not a whole lot more. It's a valid question though, they might be able to extract a larger subsidy from carriers.

Do you really think they'd throw anything less at it, if it were closed source?

I expect Apple would much prefer iOS to have a duopoly with WP7 than with Android. Open platforms lead to messy disruptive innovations that can quickly dislodge established players.

That would have been 6 more years of commercial work for John Hodgman and Justin Long.


Does the web count?

If you believe the idea being thrown around that Microsoft makes more on Android patent shakedowns (licenses) than it does from its own mobile OS, then no, Android has actually helped Microsoft.

s/open source/free licensing model/

Sure, they could throw $4B into a lobbying campaign against software patents. But there's no great reason to think it would be successful, and it probably wouldn't have any effect on previous patents. On the other hand, that would make a hell of a warchest for defending themselves in infringement suits...

But how would they convince stockholders? Spending $4 billion on a bid for patents where the ouctome is known versus a campaign that might work but goes against the system are very different things.

I agree. That's why I'm saying using the money to defend against infringement suits as they arise makes more sense, instead of using it to try to change the system as a whole.

I replied to the wrong comment. Totally agree with you.

The writer, who has indeed attacked software patents on previous occasions, omits a key step in his argument.

para 3 "Of course, that doesn't necessarily mean that Android infringes on anyone's patents.:" This is absolutely correct. But it doesn't mean that it doesn't either. And without examining the facts (a matter requiring a significant effort of time and effort and no small familiarity with patent law) it is impossible to know a priori whether the patents have been infringed upon.

"It simply indicates that the companies in question have done the sums and decided that it is probably cheaper in the long run to pay licensing fees now rather than risk losing a long and expensive patent infringement suit and end up paying much more later. " True. But without evidence and argument we still don't know if they settled because they (a) although they sincerely believed they were not infringing they didn't want to risk the legal process, or (b) they did believe they were infringing and whilst they would much rather not pay it was pointless to resist. All we can be confident of therefore is that (a) in either case their assessment of the risk has certainly been expertly evaluated by the best IP attorneys money can buy, and (b) those attorneys advised them to settle so they are unlikely to have been crystal clear it was blindingly obvious there was no infringement.

"In other words, these deals are mostly about the skewed incentives of the US patent system" This is a false conclusion. This statement is not a reasonable consequence of anything that proceeded it. It is rather a statement of the writer's opinion of the patent system. He has twisted the argument, with no supporting evidence, to support his cause.

The fact is that from the material he presents (practically nothing) we cannot draw any meaningful conclusions about the state of the patent system. He and/or we may have prior opinions about the subject but this paragraph is just another opinion masquerading as an argument.

Of course you can draw meaningful conclusions. Given that all popular smartphone OS market players are in cross-licensing deals or lawsuits related to patents, and that a single licensing deal can cost $10 or more per handset, you can conclude that it's too expensive for small players to enter that market (since they will have no patent portfolio to negotiate with). This means that the smartphone OS market is effectively closed. That's harmful, no matter how you twist the argument.

So if I understand you correctly, even if someone has a meaningful valid patent and infringers on reviewing the patent agree that it is a valid patent, and even if the licensing terms are agreed to be reasonable by both parties, even in such a case you would still consider this to be in some sense wrong because the $10 handset license (which incidentally is still ridiculously cheaper than developing your own smartphone OS) is a competitive disadvantage to smaller would be handset manufacturers or network operators, even though that wouldn't seem to be the case because everyone else supplying android phones is paying the same fee? In fact, ironically having Android available for $10 a phone is a great deal for small suppliers. You are, however, quite happy to accept trashing someone's intellectual property rights, even if they are valid, because of some imagined competitive disadvantage? That doesn't seem to me to be a coherent position or a meaningful conclusion.

"This means that the smartphone OS market is effectively closed."

So how did Apple enter it? Or Google? When 75% of the market is an exception to your rule it's time to give the rule a second look.

"too expensive for small players"

This is dreamland. Patents aside, making a competitive mobile phone is a huge capital intensive endeavor. Patents don't scare people off half as much as the world of contract manufacturing does. There's no 17 year old wunderkind in Topeka being stopped from billionaire status here.

Apple and Google are excellent examples of how the market is closed. They can lose billions of dollars and still turn a profit. They can enter any market they want, even completely closed ones.

If it's dreamland, why are there small desktop linux competitors? You confuse engineering effort with business effort. You can't launch a smartphone OS business, but you can launch a desktop OS business. The only reasons that this is the case are patents.

"why are there small desktop linux competitors?"

How are they different from the Android forks showing up around the world?

How do they make money? How much would they make if Google gave away the same services for free?

If milk (read: Smartphone OS) was free it's seems pretty clear that you and I would not want to enter the milk selling business.

Caveat: unless we were able to deliver a superior quality milk that people would pay for and had some assurance (read: patents) that our innovation(s) would not be immediately copied and given away by the free milkers (read: Google/KIRF pirates).

The really big unaddressed question in this post is whether Google actually does have to defend Android. After all, $10 per handset is nothing like as much as the cost of developing, maintaining and supporting your own smartphone OS. We're not talking feature phone here, this is a sizeable piece of sophisticated software that is in competition (primarily) with iOS. (Bear in mind that Apple can amortize its enormous development expense over a very large number of handsets!) I suppose you could argue that it gives MS some kind of an advantage with their OS but that rather ignores the investment MS had to make developing their OS.

I am certainly prepared to be persuaded that somehow fighting the patents in question is a life or death matter for Android but so far I haven't seen a convincing evidence that it's true.

$10 to MS, $10 to Apple, $10 to Nokia, $10 to RIM, $10 to Qualcomm, $10 to Oracle, $10 to nvidia, $10 to IBM, etc...

?? I'm sorry. I don't understand your point. Could you explain it for me.

I mean that paying off $10 to Microsoft doesn't scale because very soon you'll be paying several others with similarly slightly-relevant patents and who are all already either in court, threatening to take their cases to court, or have a history of not being shy about doing that.

For major players I think it is likely to scale precisely because of the pervasiveness of patents in the area. Those companies with substantial patent portfolios (many of them as you pointed out) gain nothing by suing each other and so most of the time they don't. The case that would indeed be a concern would be if there were a company with no patent portfolio that the others could all pile onto and freeze out. This is possible but it does raise the question of how Apple was able to enter a market with such heavy existing IP holdings. A point worth remembering is that patents don't have to stop you innovating but rather oblige you to redirect your innovation. So if you want to build another 'me too' product there may well be IP issues to navigate but if you do want to truly innovate it is unlikely to be a major concern of the kind you describe with everyone else holding patents in the area.

If Google wants to abolish patents, they'll need a lot of companies to support them. But surely some of these companies will want to help:


I wonder if it would be possible to claim that patents used in this way actually violate antitrust laws.

No it wouldn't. Patents are deeply enshrined in US law and a patent holder is perfectly within their rights to pursue those infringing on their rights. In fact that is the only right they have!!

"To defend Android, Google must attack software patents"

But then Google jeopardizes its own search patents.

More than any other software company, I think that Google's patents are purely defensive. I don't think Google wants to sue anyone.

I think that's largely true for Microsoft and Apple as well. Although Apple does get a little snippy when people copy too closely. And Oracle seems to relish a good lawsuit.

I propose we write an android/iphone game for that. As the android bot attacks patents. With the last boss being balmer who will throw "developers" at the little android's shield of awesomeness.

It'll be mortal combat meets zelda. Who's in?

I'd rather make it into a LARP. One with pitchforks and torches.

hysterical :)

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