Chief legal officer David Drummond says bogus patents are being used make Android more expensive and to deprive consumers of choice.
Seeking to reassure Android users and business partners, Google SVP and chief legal officer David Drummond on Wednesday said that the company is "looking intensely" at ways to counter what he characterized as "a hostile, organized campaign against Android by Microsoft, Oracle, Apple, and other companies, waged through bogus patents."
Google is being attacked in court from all sides over alleged patent violations related to Android. Microsoft has secured patent license agreements from several Android hardware markers and sued companies that have not paid for licenses, like Barnes & Noble. Oracle has sued Google directly over the company's alleged misuse of Java technology it acquired from Sun. Apple has sued Android handset makers HTC and Samsung, claiming patent infringement.
In late June, Apple joined with EMC, Ericsson, Microsoft, RIM, and Sony to outbid Google and Intel for bankrupt Nortel's portfolio of patents. The group paid an unprecedented $4.5 billion, almost five times the pre-auction estimate.
Drummond sees the patent attack as a way to ensure that Android won't be free to handset makers. If Google will not charge for it, then Microsoft and other patent holders will impose a cost by charging a patent royalty.
"A smartphone might involve as many as 250,000 (largely questionable) patent claims, and our competitors want to impose a 'tax' for these dubious patents that makes Android devices more expensive for consumers," wrote Drummond. "They want to make it harder for manufacturers to sell Android devices. Instead of competing by building new features or devices, they are fighting through litigation."
Drummond said that Google has been encouraged by the Department of Justice's decision to impose conditions on the sale of Novell's patents to a group that includes Apple and Microsoft and that the DOJ is looking into whether those two companies might use Nortel's patents to limit competition.
He also offered assurance that Google is looking into other ways to limit anti-competitive threats to Android by strengthening its patent portfolio.
"Unless we act, consumers could face rising costs for Android devices--and fewer choices for their next phone," he said.
In fact, Google has done more than look: It quietly acquired more than 1,000 patents from IBM, prior to the Nortel auction. And The Wall Street Journal says that Google has been conducting patent acquisition and licensing talks with InterDigital, which owns several thousand wireless patents.
At a Google mobile conference in Tokyo last month, executive chairman Eric Schmidt reportedly said that Google plans to help HTC deal with Apple's patent infringement claim, though he did specify what actions Google might take.
Florian Mueller, an intellectual property activist who writes regularly about patent issues, acknowledges that Android has a patent problem, but says there's more to it than a conspiracy of competitors. In an email, he noted that the federal judge overseeing Oracle's infringement claim against Google has voiced suspicion that Google may have willfully infringed the Java patents in question, preferring to roll the dice rather than pay the price.
Mueller observes that the mobile industry has been particularly litigious for quite a while and that for a long time before the arrival of RIM's BlackBerry, there weren't any new entrants that rose to become major players.
"Unfortunately, it's a difficult market for late entrants who don't bring a powerful patent portfolio to the intellectual property negotiating table," he said. "Google must continue to buy patents to bolster its portfolio. That's more likely to help them address the real issue than any allegations of anticompetitive conduct by others."
Patrick T. Igoe, a patent attorney, founder of Igoe Intellectual Property, LLC, software engineer, and blogger, takes issue with Drummond's argument that Google's competitors are litigating rather innovating.
"Apparently, David Drummond has missed the last five Apple WWDC keynotes and quite a few Apple product announcements," he said in an email. "Maybe he was busy watching Google TV."
Igoe says that Google's core focus has been on advertising and data collection technology and that it has largely followed Apple's lead with Android. He points to Google's weak intellectual property portfolio as proof.
"No one would benefit, not even Apple in the very long run, from Apple having an effective monopoly on premium-user-experience smartphones," he said. "Google, however, will have to come to grips with the fact that its failure to innovate and protect its innovation like Apple did will have costs."
Igoe expects that the price advantage Google has enjoyed will be diminished by licensing costs.
"That does not mean Android can no longer compete, but it does mean Android and the supporting ecosystem will need to get a lot better to stay competitive as price advantage erodes," he said. "Google could mitigate this problem in the long run by creating new technologies for Android that Apple would have to license. I think the reaction we are seeing from Google, though, shows a lack of confidence that they can do that."
A research note issued by Deutsche Bank on Wednesday explores the Android patent situation and concludes Android will become the most popular mobile platform despite also becoming more costly, but will not achieve the level of dominance that Windows achieved.
"In the end, the smartphone landscape is already too far evolved for a single vendor to take over," the report concludes. "Instead, we think the only force that can bridge today's fragmented landscape will be HTML5 and the advent of Web tools and that is still several years away from becoming viable."
The research note, co-authored by Deutsche Bank analysts Jonathan Goldberg, Brian Modoff, and Kip Clifton, says that Samsung and at least one other vendor "are working on HTML5-centric OS which may start to emerge by 2013."
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