Microsoft vs. Motorola

Microsoft has been lobbing water balloons at Google's Android mobile operating system for months now, but on Friday the Redmond software maker tossed a Molotov cocktail in the form of a lawsuit alleging infringement of nine of its patents by Motorola's Android-based smartphones. Microsoft filed in the International Trade Commission and in the U.S. District Court for the Western District of Washington.

In a statement posted to Microsoft's News Center Page, Horacio Gutierrez, Microsoft's corporate vice president and deputy general counsel of Intellectual Property and Licensing. wrote: "The patents at issue relate to a range of functionality embodied in Motorola's Android smartphone devices that are essential to the smartphone user experience, including synchronizing e-mail, calendars and contacts, scheduling meetings and notifying applications of changes in signal strength and battery power."

Microsoft is seeking triple damages, compensatory damages and court costs, along with a permanent injunction against Google.

Al Hilwa, Program Director in the Applications Development Software group at International Data Corporation (IDC), shot me an e-mail as soon as the news broke. He has a pragmatic view of Microsoft's action.

"Patents are the way of tech today," he wrote, "whether we like it or not. Companies regularly engage in licensing discussions and deals with their partners and competitors, who are often the same. These lawsuits come up when there is a breakdown in the discussions. Android was a great gift to the industry, but lawsuits like this are beginning to throw doubts on its provenance. Microsoft is, of course, launching Windows Phone 7, for which it charges handset makers some dollars. The lawsuits around Android make the point that device licenses for the technology stack may be viewed as inexpensive when measured against the legal fees that might be incurred."

Florian Mueller, the founder and former director of the NoSoftwarePatents campaign and author of the FOSS (free and open source) Patents blog isn't so sanguine.

"These patent suits brought forward by industry giants with massive patent portfolios unmatched by Google are dark clouds over Android," he wrote in an e-mail. "Google must now act constructively and try to work out amicable arrangements with those right holders. Otherwise I'm afraid that third-party application developers investing their money, creativity and hard work in the Android platform will be harmed because of an irresponsible approach to intellectual property in a market in which patents have always played an essential role. Android phone vendors and other parties will also be affected, but application developers are the ones I'm most concerned about in all of this."

Microsoft just announced its Windows Phone 7 operating system (due for public unveiling on October 11), so I guess I'm not surprised about the timing of the lawsuit. Maybe it's just business, but the company has been making noises for years about 235 patents it claims are being infringed by Linux vendors (Android is based on the Linux kernel). Why strike now?

"We have a responsibility to our customers, partners and shareholders to safeguard the billions of dollars we invest each year in bringing innovative software products and services to market," Gutierrez added in his blog. "Motorola needs to stop its infringement of our patented inventions in its Android smartphones.”  

Microsoft isn't alone, of course, in claiming Android patent violations: Oracle is suing Google over Java patents the company alleges are violated in the Android OS. And Apple sued phone maker HTC earlier this year for infringing on more than 20 patents in the Android OS. (HTC sued back, claiming five infringements.) And this weekend, Microsoft CEO Steve Ballmer told the Wall Street Journal that HTC is paying a license fee for its use of Android, and that other phone makers will end up doing the same.

Microsoft is currently in fourth place in the U.S. market for smartphone OSes, according to comScore, behind RIM, Apple, and Google.

If I had only 12 percent of the market for what is rapidly becoming the dominant computing platform, I guess I might throw an elbow, too. Companies certainly have a right and obligation to protect their intellectual property. But this suit could do some real damage to developers who have invested their time to develop their Android chops. Consider this: A recently published survey of nearly 2,400 app developers around the world conducted jointly by IDC and Appcelerator, a Mountain View, Calif.-based maker of an open source application development platform called Titanium. According to the survey, 72 percent of developers say Android "is best positioned to power a large number and variety of connected devices in the future," compared with 25 percent for Apple's iOS. In the survey, 59 percent of developers favored Android's long-term outlook, vs. 35 percent for iOS. This gap has grown by 10 points since a similar survey was conducted in June.

It'll be interesting to see what the next survey reveals.

Here's a list of the patents Microsoft is claiming were infringed:

- Patents No. 5,579,517 and 5,758,352: "Common name space for long and short filenames."

- Patent No. 6,621,746, which is related to the flash memory management techniques.

- Patent No. 6,826,762: "Radio interface layer in a cell phone with a set of APIs having a hardware-independent proxy layer and a hardware-specific driver layer."

- Patent No. 6,909,910: "Method and system for managing changes to a contact database."

- Patent no 7,644,376: "Flexible architecture for notifying applications of state changes."

- Patent No. 5,664,133: "Context sensitive menu system/menu behavior."

- Patent No. 6,578,054: "Method and system for supporting off-line mode of operation and synchronization using resource state information."

- Patent No. 6,370,566: "Generating meeting requests and group scheduling from a mobile device."

Posted by John K. Waters on October 4, 2010