Is Microsoft trying to kill Google's Android OS by blasting lawsuits at device sellers like Barnes & Noble and device makers like Foxconn and Inventec? I don't think so. The software giant is more likely trying to make a buck through licensing deals. That's not to say winning business at gunpoint is a tactic I admire, but that's very different than assuming that Redmond sees Android as a deadly threat and wants to fit it with a pair of cement shoes. However, Android is in deep legal trouble. This week's suit against the Nook crowd is just one of 37 — count 'em — Android-related lawsuits filed during the operating system's short life, according to open source activist and patent watcher Florian Mueller. Why so many? "It's a combination of Google's arrogant and reckless approach to other companies' intellectual property rights, Google's gambling at the expense of its partners who bear the brunt of this, and the weakness of Google's own patent portfolio, which is small and not sufficiently diversified to solve Android's [intellectual property] problems with cross-licences," Mueller says. Watching patent suits generally matches paint-drying festivals for excitement, but this bunch is different. It touches on the biggest names in techdom, including Apple, Oracle, Microsoft, Google, and Motorola; it exposes yet another flaw in the Google/Android business model; and it shows once again how badly the US patent system is broken. Why Microsoft went to war
To be clear, the intellectual property mess surrounding Android involves both copyrights and patents. Microsoft, of course, claims that the Nook crowd has flat-out violated several patents. The earlier suit against Google by Oracle involves both patents and copyrights, while the dispute over Linux and its relationship to Android is purely a copyright issue. Android is an enormously complex project; its SDK alone contains some 100,000 files. Even using an automated software application to audit something that large could take the better part of a workday, says Mahshad Koohgoli, CEO of Protecode, whose products do just that. "Good developers don't write code from scratch," he notes. There's plenty of opportunity to make an honest mistake. It's probably not coincidental that as litigation around Android and other open source project flourishes, Protecode has grown rapidly, with business up some 200 percent in the last year alone. Koohgoli is smart enough not to comment on anybody else's litigation, but other developers tell me that Google, at the very least, is guilty of carelessness. I can't read anyone's mind, but I find it hard to believe that a company as rich as Google is deliberately ripping off intellectual property. Mistakes, though, do happen, and even if you don't like Microsoft, it appears that the Redmonders may well have a case. (Todd Bishop over at GeekWire has more patience than I do, and here's his rundown of what patents are in play in the Microsoft v. Barnes & Noble case. He notes, by the way, that the patents cited are not the same as those named in Microsoft's suit against Motorola.) Why then doesn't Microsoft simply sue Google? That would be the way to proceed if it wanted to kill Android. But the device makers are the ones actually implementing the disputed patents. "In the technology industry, device manufacturers are the point in the chain of commerce at which steps are taken to clear third-party patent rights. The Android platform infringes a number of Microsoft's patents, and companies shipping Android devices must respect our intellectual property rights," a Microsoft spokesman told our colleagues at PC World. In other words, the economic harm that patents are designed to prevent occurs when a product is sold, so the ultimate sellers become the patent lawsuits' targets. By suing the Nook crowd, Microsoft has a chance to make them sign profitable licensing agreements. "Their announcement of this lawsuit is a clear indication that they only felt forced to sue because Barnes & Noble, Foxconn, and Inventec refused to accept Microsoft's terms even though Barnes & Noble's closest competitor, Amazon.com, is already paying," Mueller said. Is Apple playing a blocking game in the mobile patent wars?
Not everyone sees Microsoft's motivations that way — or Apple's, for that matter. (Apple is suing device maker HTC over alleged violation of iPhone patents.) Open source strategist and Alfresco vice president Matt Asay put it this way: "Android renders Microsoft's entire business plan obsolete. For Apple, which gives away the OS as part of its hardware, Android is an affront to its superior taste: How dare that cheap mongrel OS displace Apple at the top of the heap? Don't those silly consumers know elegance when they see it? Apple hopes to slow Android's progress, while Microsoft hopes to salvage its outdated business model. Neither is going to win," he tells me. Although I tend to agree more with Mueller's view, I'd certainly concede that Asay may be right. This is complicated stuff. The larger issue is the damage wrought by a patent system that encourages endless, expensive litigation over intellectual property rights. The system is particularly dangerous for smaller companies that lack the resources to fight lawsuits brought by much larger competitors. Of course, there's the long-standing practice of suits by "trolls," companies that buy up patents unrelated to their business for the sole purpose of suing companies they accuse of violations. Patents were included in our Constitution to foster and protect innovation. The current system does the opposite. Congress is again looking at the issue, but that's no guarantee a better result is coming. I don't have the room to explore this larger patent issue fully in this post, but I expect to follow up in future stories. I'd welcome your thoughts on intellectual property issues in software, particularly if you've been on either end of a patent lawsuit. Snyder is a San Francisco- based technology writer