Government // Mobile & Wireless
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7/5/2011
04:59 PM
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Google Goes Missing In Lodsys Litigation

Android developers continue to ask when Google will come to their defense as Apple has done for its developers. They may have a long wait.

Assuming for a moment that Microsoft can secure equivalent or greater royalties from other Android vendors--some like Barnes & Noble and Motorola are resisting and others like Samsung may be protected by patent licensing agreements negotiated with Microsoft prior to Android's arrival in 2008--the math could look something like this: 500,000 handsets activated per day, at $5 each, over 365 days, comes to almost a $1 billion.

Of course, Microsoft is probably only bringing in a fraction of that and Google's Eric Schmidt has suggested Android is on its way to being a $10 billion business. But the point remains that Google wouldn't benefit much from providing legal assistance to a handful of Android developers and there are other demands on its legal resources.

It has been suggested that Google, as a Lodsys patent licensee, may be contractually prevented from challenging Lodsys' patents. If that's the case, Google has not confirmed it.

Google could be assuming that if Apple succeeds in invalidating the applicable Lodsys patents or in establishing that its license agreement with Lodsys extends to its developers, then Android developers would inherit the victory. And Apple is not alone in challenging Lodsys: Some defendants are seeking declaratory judgments and there's an effort to turn up prior art to invalidate Lodsys's patents.

Igoe also finds the Lodsys' patent infringement claims unconvincing, a conclusion that, if shared by Google, might be sufficient to keep Google out of the fray.

"I see no path to Lodsys showing infringement by developers of its patents," he said.

In an email, Igoe elaborated that the Lodsys claims "require multiple units of a hardware device and a central server for infringement," and therefore don't apply to developers since they do not provide phone hardware or a central server. He also noted that contrary to published reports, Lodsys' claims do not cover in-app purchase or in-app upgrades.

"The Lodsys business model seems to depend on fear of the exorbitant costs of patent litigation rather than the merits of the patent claims," he said in an email.

Nevertheless, Lodsys' claims can't be treated as trivial. Florian Mueller, an intellectual property activist who has followed the Lodsys litigation, believes Lodsys will continue to sue app developers. That's a concern shared by Igoe.

"If Lodsys is successful with this business model, we will certainly see imitators," he said, adding that the next infringement claim against developers will likely be based on much better patents.

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