As Bessen and Meurer's book "Patent Failure"
points out, one of the biggest problems with software patents is their lack of well-defined boundaries. This makes it very hard to tell whether newly-written code is infringing on existing patents or not. The threat of treble damages for wilful infringement
removes any incentive to try to find out.
On the other hand, many software patents have been issued for basic programming techniques that are obvious to most competent coders, which makes it almost impossible not
to infringe on them. Their obviousness means that it might be possible to find prior art to have them invalidated, but that takes time – and lots of money.
Put these two facts together, and you have the perfect situation for patent bullying. Holders of software patents will claim that some of your code infringes on their ideas, and that they could, if they wished, sue you and/or get your product withdrawn from the market. But generous types that they are, they will instead offer a licensing deal that solves all your problems.
The great thing about these licensing deals is that no details need be given afterwards – indeed that's usually a condition of them. So the patent holder can use them to insinuate to the rest of the world that fabulous sums are involved for multiple patent infringements, and that other people had better sign up quick before they get sued for even more.
Back in 2007, Microsoft tried to deploy this approach against companies – and users - using free software, which represented an increasing threat to Microsoft's dominance:
"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.
Significantly, though, Microsoft would never reveal what exactly those 235 patents were, despite repeated calls for them to be detailed so that people could examine the validity of Microsoft's claims. Because of this, the free software world called Microsoft's bluff, refusing to enter into licensing deals; no one was sued.
More recently, Microsoft has tried again, this time approaching manufacturers with products based on Android, which has free software such as Linux at its heart. Once more, claims that Android infringed on Microsoft's software patents were never specific, but this time it's been more successful in lining up licensing deals with major players, including one with HTC in April 2010
, one with Casio, a few weeks ago
and one with Samsung this week.
Most news outlets have been proclaiming the latter in particular as a huge blow against Android. But let's just look at what the press release actually says
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.
Everyone has focused on the part about Microsoft receiving royalties for Samsung's Android products, which would imply that Android does, indeed, infringe on Microsoft's patents. But the press release made no mention of the figures involved, or what precisely they were for. Samsung might have agreed to pay $5 per unit, or 5 cents. And for all we know, that “development and marketing of Windows Phone” might even involve Microsoft paying, say, $5 or 5 cents per Android unit back
In other words, this might well be much ado about nothing, the main purpose of which is to provide Microsoft with more “evidence” that it can wave at other companies when it goes calling for more licensing deals. A separate post by Microsoft's Brad Smith and Horacio Gutierrez
spells that out for us:
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.
These agreements prove that licensing works. They show what can be achieved when companies sit down and address intellectual property issues in a responsible manner. The rapid growth of the technology industry, and its continued fast pace of innovation are founded on mutual respect for IP. Intellectual property continues to provide the engine that incentivizes research and development, leading to inventions that put new products and services in the hands of millions of consumers and businesses.
In other words: “Look, all these companies can't possibly be wrong. There's clearly a big patent problem with Android, and anyone basing products around it had better sign up too.”
Why might Samsung go along with this kind of thing? Well, because we don't know the details of that licensing deal, it might be receiving more than it pays out – unlikely, but possible. More likely is the situation where Microsoft agreed to help it in various ways with the Windows Phone products that it also produces – after all, Samsung just wants to sell hardware, and doesn't really care which software it runs. There are plenty of legitimate ways in which Microsoft could make Samsung's acquiescence in this licensing game attractive.
And let's not forget that Samsung is currently embroiled in a much more serious dispute around the world with Apple over its Android products. It's a basic rule that you don't fight wars on two fronts if you can help it, so settling with Microsoft – especially if the terms were favourable – makes good sense from a business point of view.
To summarise, then, this high-profile deal tells us nothing about the real terms of the agreement; all we have is a reinforced appearance that Android infringes somehow on Microsoft's (unspecified) software patents – pure FUD (Fear, Uncertainty and Doubt).
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