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Microsoft Expert Improperly Reviewed Android Code, Google Claims

Open source code apparently isn't altogether open, and that fact is playing out in a legal dispute over Android, the mobile operating system that was shepherded by Google.

On Wednesday, Google filed a request with the U.S. International Trade Commission's administrative law judge overseeing an intellectual property dispute lodged by Microsoft against Motorola. Google's filing claims that that an expert witness wasn't cleared beforehand with Google before he received access to confidential Android code for review in that case.

Google is acting as a "nonparty" in the case, but the company was compelled to submit some confidential Android code as part of the dispute. Microsoft was supposed to have disclosed ahead of time any witnesses it wanted to have review Google's code, but it failed to do so in the case of Dr. Robert Stevenson, Google contends. Consequently, the judge should prohibit Dr. Stevenson's testimony on Google's source code and Microsoft should be compelled to disclose any other consultants who have reviewed it, according to the filing.

Google claims that "the confidential source code improperly provided to Dr. Stevenson is highly proprietary source code that Google does not even share with its partners, such as Motorola." The code was checked for "alleged infringement of U.S. Patent No. 5,664,133 ('the '133 patent'), served on Motorola on July 11, 2011," which appears to describe some sort of context pop-up menu system.

Google's attorneys said they would have rejected Dr. Stevenson's review because he has served as a consultant for Microsoft and Hewlett-Packard, which are considered to be "direct competitors of Google." Microsoft contends that Dr. Stevenson has only has acted in litigation concerning printer technology.

The dispute is one of many over Android use. Google helped develop the open source Android mobile OS and offers it royalty free to device makers, such as Motorola, to use. The benefit for Google is that the proliferation of Android devices increases Web traffic and draws more eyeballs to monetize Google's main search-text advertising business. However, it's not clear that Google has provided much in the way of indemnity assurance to those using Android in commercial products.

Microsoft and Apple have been suing multiple equipment manufacturers over using Android. Oracle is suing Google directly over Java intellectual property claims associated with Android use.

Microsoft is thought to be charging between $5 to $12 licensing fees for each Windows Phone 7-based device, but the mobile OS still has some catching up to do. In the second quarter, global smartphone use of Windows hit 1.6 percent vs. Android use at 43.4 percent, according to a Gartner report. It's estimated that Microsoft now makes more off Android-use royalties than it does from Windows Phone 7 royalties.

A recent study by Vision Mobile found that Android is one of the least open projects, based on an "open governance index." This index measures access to source code, transparency of decision making, as well as the ability to create source code derivatives in open source projects. Android's open governance index rating was 23 percent, trailing other projects such as Qt, Symbian, MeeGo, Mozilla, WebKit, Linux and Eclipse. Eclipse got the highest mark in the study, with an 84 percent open governance index.

About the Author

Kurt Mackie is senior news producer for 1105 Media's Converge360 group.

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