Google Goes Missing In Lodsys Litigation

When Apple's iOS developer community faced patent infringement claims from Lodsys, an intellectual property licensing company, developers complained. Apple responded, first with a letter to discourage Lodys from suing its developers, and then, when that failed, with a request to intervene in Lodsys' lawsuit.

Google's Android developer community has also seen a few of its members accused of patent infringement by Lodsys. Developers working on the Android platform would like to see Google defend them as Apple has done for its own. But Google has not done so.

Google has repeatedly declined to comment on its apparent disinterest in legal attacks on its developer ecosystem, a fact that has not gone unnoticed by Lodsys.

"Google has not explicitly addressed patent rights for Android," Lodsys CEO Mark Small said in a blog post at the end of May. "There are 30+ patent litigations active related to the Android platform at this time, so IP clearance is a visible and known issue with Android."

Small declined to comment for this article; Lodsys on Tuesday filed patent infringement lawsuits against six companies, including the New York Times, that previously filed for a declaratory judgement that they are not infringing.

Google allowed a significant opportunity to clarify its commitment to its Android ecosystem to slip away last week when it failed to outbid a consortium of Android competitors, including Apple, Microsoft, and RIM, for Nortel's patent portfolio.

Had Google won that auction--it would have taken more than $4.5 billion to do so--the company might have countered criticism that it is indifferent to the legal jeopardy faced by its partners and developers. Instead, Google and/or its hardware partners are likely face further demands for licensing fees--the companies that bought Nortel's patents can be expected to try to recoup their investment--and developers who wish to create Android apps will have no choice but to continue working on a platform under siege.

Google's lack of decisive action means that the Lodsys patent litigation--now affecting 33 companies--will continue to be seen as a threat to mobile developers, particularly those utilizing the Android platform.

Patrick T. Igoe, a patent attorney, founder of Igoe Intellectual Property, LLC, software engineer, and blogger, says he finds Google's silence on the Lodsys claims against Android developers interesting, but suggests that Apple actions rather than Google's are the most notable.

"I see this more as Apple going above-and-beyond than Google being deficient in any way," he said in a phone interview. "Apple has decided it's worth it to act in support of its development community."

Is it worth it to Google? Perhaps not. In fact, Android may be worth more to Microsoft than to Google at this point, in potential if not actual revenue. Mobile advertising, mainly from Android, was estimated last year to be worth about $1 billion per year to Google. Microsoft is said to be getting $5 per handset from HTC in patent royalties and the company continues to secure patent licensing agreements from other Android hardware makers like General Dynamics, Onkyo, Velocity Micro, and Wistron. 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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