Android’s patent quagmire (Part II)
Patents: How it could help (Protect) and injure (the not so ready)
The theory of protection because of Collateral damage
A lot of times just the sheer volume of patents [is] sufficient to deter someone from filing suit against you. When you have the potential to get a court order that will exclude a competitor’s product from the marketplace, that is a very powerful thing. Apple and Microsoft both had lots of patents that could potentially do that with respect to the Android products. And unless and until Google is in a position where they have patents to raise those same threats, there’s no reason for Apple and Microsoft to back off. They’re either going to get the products excluded or they’re going to get damages and/or royalties going forward.
Patent as an instrument of Doom
Even more threatening, perhaps, is the specter of rulings preventing Android phones and tablets from either being sold or using certain types of functionality. Apple and Samsung and then Apple and HIC have been at war on Patents with Apple insisting import ban on Samsung on Samsung smartphones and Tablet in certain states.
Making Android uncompetitive
Also what could hurt Google is the fact that the patent holders may choose to impose unreasonable fees for the patents in which case the open source zero cost Android could become uncompetitive in the markets. As long as Android lacks proper patent protection, Microsoft can demand licensing fees from hardware vendors. With a stronger patent portfolio, Google and partners could negotiate cross-licensing deals that don’t require payments. However, the point of these lawsuits is to raise the price of Android so that it is no longer able to compete. If Google and partners have to pay licensing fees, or change functionality due to infringement findings, “then all of a sudden Android is not as strong a competitor.”
Google/Android left its ranks uncovered in its charge for marketshares
Google’s rush into the smartphone market as an outsider “seeking to get to the front ranks” very quickly afforded it little time to build a defensive portfolio or negotiate cross-licensing deals to head off lawsuits. The key for Android will likely be in Motorola’s patent portfolio, when and if Google officially takes ownership of the company. None of this will be positive for Android. If enough of these lawsuits get through in which Android is found to infringe some of these patents, the question is what could Android do. If they could not design around the patents that could be a problem. Analysts bet that Google is hoping that they can design around all these patents, but certainly the infringement cases are a concern.
Apple and Microsoft share a similar approach in patenting technology quickly and frequently, a more common strategy for commercial software than for open source software such as Android.But the use of open source software and a smart, defensive patent strategy are not mutually exclusive. Red Hat, in the enterprise server market, has shown that an open source company can publicly oppose the software patent system while building up a portfolio of its own, offering customers indemnification against lawsuits, settling with patent trolls when a fight wouldn’t be worthwhile, and battling aggressively in other lawsuits when core issues are at stake.