At Last: Microsoft's Anti-Android Patents Made Patent

Patents have been a recurrent topic here on Open Enterprise, and mostly for the wrong reasons. But as a hopeful sign that things may be changing, here's an announcement from last week that gained quite a lot of attention: Yesterday, there was a...

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Patents have been a recurrent topic here on Open Enterprise, and mostly for the wrong reasons. But as a hopeful sign that things may be changing, here’s an announcement from last week that gained quite a lot of attention:

Yesterday, there was a wall of Tesla patents in the lobby of our Palo Alto headquarters. That is no longer the case. They have been removed, in the spirit of the open source movement, for the advancement of electric vehicle technology.

Tesla Motors was created to accelerate the advent of sustainable transport. If we clear a path to the creation of compelling electric vehicles, but then lay intellectual property landmines behind us to inhibit others, we are acting in a manner contrary to that goal. Tesla will not initiate patent lawsuits against anyone who, in good faith, wants to use our technology.

Although the devil will be in the details – what exactly is a “good faith” use, for example? - Musk deserves kudos for taking what is still a bold step: opening up his patents for anyone to use. But there’s an irony to his move “in the spirit of the open source movement”, because the very name of "patent" comes from its openness:

The word patent originates from the Latin patere, which means “to lay open” (i.e., to make available for public inspection). More directly, it is a shortened version of the term letters patent, which was a royal decree granting exclusive rights to a person, predating the modern patent system.

That later patent system replaced letters patent with a laying open of an invention in return for a time-limited, government-backed monopoly. Despite that fact, in recent years Microsoft has become the master of using open patents in a secretive way in an attempt to attack open source. Here’s what happened back in 2007:

“We live in a world where we honor, and support the honoring of, intellectual property,” says Ballmer in an interview. FOSS patrons are going to have to “play by the same rules as the rest of the business,” he insists. "What’s fair is fair."

Microsoft General Counsel Brad Smith and licensing chief Horacio Gutierrez sat down with Fortune recently to map out their strategy for getting FOSS users to pay royalties. Revealing the precise figure for the first time, they state that FOSS infringes on no fewer than 235 Microsoft patents.

They may have revealed the “precise figure”, but they didn’t reveal the precise patents. Nor did Microsoft at any later point. Instead, it allowed this unsubstantiated assertion that free software infringed on its patents simply to hang there, like some malodorous but invisible presence.

Despite the fact that this cowardly attempt to blacken the name of open source failed – companies did not start to drop it – Microsoft applied the same technique a few years later, when it started approaching manufacturers with products based on Android, with claims that the software infringed on Microsoft’s patents. This time it had more success, lining up licensing deals with major players, including one with HTC in 2010, one with Casio in 2011 and perhaps most significantly, one with Samsung:

Microsoft announced today that it has signed a definitive agreement with Samsung Electronics Co. Ltd., to cross-license the patent portfolios of both companies, providing broad coverage for each company’s products. Under the terms of the agreement, Microsoft will receive royalties for Samsung’s mobile phones and tablets running the Android mobile platform. In addition, the companies agreed to cooperate in the development and marketing of Windows Phone.

Once again, there’s no mention of which Microsoft patents Samsung’s products allegedly infringed upon. More importantly, there’s no mention of how much money changed hands. Indeed, it could easily have been a token amount – or even zero – because what was important was not the money, but that Samsung seemed to be acknowledging that Android did indeed infringe on Microsoft’s patents. Microsoft more or less admitted that was the point of the deal in a piece positively crowing over the Samsung deal:

In the context of all the attention intellectual property matters have received in recent months, it’s worth taking a moment to reflect on the meaning and impact of these agreements. The Samsung license agreement marks the seventh agreement Microsoft has signed in the past three months with hardware manufacturers that use Android as an operating system for their smartphones and tablets. The previous six were with Acer, General Dynamics Itronix, Onkyo, Velocity Micro, ViewSonic and Wistron.

Together with the license agreement signed last year with HTC, today’s agreement with Samsung means that the top two Android handset manufacturers in the United States have now acquired licenses to Microsoft’s patent portfolio. These two companies together accounted for more than half of all Android phones sold in the U.S. over the past year. That leaves Motorola Mobility, with which Microsoft is currently in litigation, as the only major Android smartphone manufacturer in the U.S. without a license.

These agreements prove that licensing works.

Well, they prove that the Microsoft method of bullying and insinuation works. But despite that, they didn’t prove that Android infringed on Microsoft’s patents because – as usual – the latter refused to reveal what exactly they were. That’s because their power really lay in their vagueness. While companies were unsure which patents Microsoft was talking about, it was more or less impossible for them to check whether they were affected. That meant they would probably be open to an easy deal with Microsoft – better to pay up than have a patent sword of Damocles hanging over you.

And that, until recently, was pretty much the state of play. Many Android manufacturers decided that discretion was the better part of valour, and signed licensing agreements with Microsoft – all secret, and therefore all maintaining the vagueness and the power to threaten. But something dramatic has just happened: in order for Microsoft to gain approval from the Chinese Ministry of Communications (MOFCOM) for the company’s purchase of Nokia, Microsoft was obliged to provide lists of the patents it claims are infringed upon by Android. That’s presumably because so many smartphones made in China use Android or a variant of it, that the authorities there were concerned Microsoft might be able to threaten its local companies. As Ars Technica reports, those lists have now been made available, allowing us to see what exactly all that sabre-rattling was about:

The Chinese agency published two lists on a Chinese-language webpage where it laid out conditions related to the approved merger. The webpage has an English version, but it doesn’t include the patent lists. There’s a longer list [MS Word Doc] of 310 patents and patent applications and then a shorter list [MS Word Doc] of just over 100 patents and applications that MOFCOM focused on. The shorter list appears to be a subset of the longer list, divided into families connected to Microsoft technologies like the exFAT file system and Exchange ActiveSync, denoted as patent group 24(EAS) in the short list.

The longer list is divided into three sections: 73 patents that are said to be “standard-essential patents,” or SEPs, implemented in smartphones generally, followed by 127 patents that Microsoft says are implemented in Android. The final section includes another section of “non-SEP” assets, which includes 68 patent applications and 42 issued patents.

Fortunately, the two lists mentioned above not only include the US patent numbers, but also short English-language titles. From scanning through these, it’s clear that many of the patents are the usual ridiculous grants of monopolies on obvious ideas, mostly regarding wireless and smartphone technologies. There seem to be very few that will apply directly to the open source elements of Android, like Linux. Moreover, for any Microsoft patents that may be problematic in jurisdictions foolish enough to recognise them, the free software community can now explore ways of challenging the patents, or of coding around them where necessary. That simply wasn’t possible before. Now, thanks to those kind Chinese bureaucrats, the open source world finds itself in a patently better situation.

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