News

Google: Android Under Legal Attack by Microsoft, Apple and Oracle

• By Kurt Mackie
• 08/03/2011

Android is being attacked not so much by competing mobile operating systems, but mostly by intellectual property lawyers at Microsoft, Apple and Oracle.

That message comes from David Drummond, Google's senior vice president and chief legal officer, who accused those three companies in a blog post today of initiating "a hostile, organized campaign against Android." Google, which shepherded the open source, Linux-based Android mobile OS, recently lost out in two bidding auctions over Novell's and Nortel's intellectual property. In each case, the patents at stake could be used to encumber Android and other mobile technologies, or just lead to an accumulation of patents for legal attack purposes.

Mobile device makers are currently being sued by Microsoft and Apple for intellectual property associated with Android. They are either fighting it out in the courts, as with Motorola's and Barnes and Noble's lawsuits with Microsoft, or they are striking royalty agreements, such as HTC's deal with Microsoft, among many others. In addition, Oracle is suing Google directly over the alleged use of patented Java technology in Android.

Google doesn't charge royalty fees for the use of Android, but it also doesn't appear to offer much in the way of an indemnity defense for the companies using Android in their products. Moreover, even though Android is open source code, it's not rated as being much of an open project, according to a study noted by patent expert and blogger Florian Müller.

Drummond noted that the winning bidder for the Novell patents included a coalition of companies, called "CPTN Holdings LLC." The CPTN members consisted of Microsoft, Oracle, Apple and EMC that collectively paid about $450 million in cash for 882 Novell patents. He claimed that Microsoft and Apple had banded together under this coalition to ensure that Google didn't get hold of those Novell patents.

The U.S. Department of Justice has already gotten involved in overseeing the Novell patents sale because of concerns that the intellectual property might be used to curb Linux competition in the marketplace. To meet regulatory concerns, Microsoft was compelled to sell back the Novell licenses it bought as part of the CPTN coalition to The Attachmate Group, although Microsoft will continue to have access to that licensing. Attachmate bought Novell Inc. in November for $2.2 billion.

Similarly, Nortel sold its 6,000-plus patents this month for $4.5 billion to a consortium of companies that included Apple, EMC, Ericsson, Microsoft, Research In Motion and Sony. Drummond noted in the blog post that the Department of Justice is "looking into whether Microsoft and Apple acquired the Nortel patents for anti-competitive means."

The Department of Justice hasn't publicly announced the Nortel patents investigation that was noted by Drummond. However, a recently published article in The Wall Street Journal confirmed the investigation, citing "people familiar with the matter." Microsoft had licenses to use some of the Nortel patents it was bidding on, and that fact has led to speculation about why Microsoft would need to purchase them.

Google has "encouraged the Department of Justice" to investigate the competition aspects of both the Novell and Nortel patent sales, according to Drummond. He added that Google is bolstering its patent portfolio to defend Android. It's not clear if Drummond meant Google's recent purchase of 1,030 patents from IBM for an undisclosed amount. No definitive reason was given by Google for the purchase.

Despite its IBM patent purchase, Google may only be able to use those patents as part of a defensive legal negotiating stance when being directly sued for patent infringement. The company still may not be capable of providing indemnity to the many mobile smartphone makers that have been sued for using Android, according to Müller's analysis.

Suing over Android use is big business. It's thought that Microsoft now makes more money off the companies it has sued over Android use than it does from Windows Phone 7 royalties.

Other legal scuffles are on the horizon. In June, Google acknowledged that the U.S. Federal Trade Commission is investigating Google's search and advertising business practices. Complaints that may have sparked this investigation were spearheaded by companies that are part of a FairSearch.org pressure group. The group includes Microsoft, Tripadvisor, Travelocity and Kayak, among others.