The Microsoft legal action against Motorola, over supposed patent infringements in Android this week reeks of both desperation and hypocrisy, much like the belated attempt by Oracle and its subsidiary Sun to hijack the Android Java Virtual Machine strategy.
In Microsoft’s case it clearly never invented anything in push email, since Blackberry has been doing that for centuries. The strategy is a sideswipe at Android, trying to force handset vendors and potentially operators, to pay royalties on a system which is open source and therefore free.
The Oracle case took a turn this week with Google rather belatedly firing off a riposte claiming Oracle is being hypocritical, invoking licensing policies it once criticized. Yeah, well that’s not the point ‘ we’re all grown ups here ‘ the issue is whether or not there was any patent breach.
But this statement was issued with Google submitting a formal response in the US District Court for the Northern District of California, denying all the claims and it has also petitioned Judge William Alsup to declare the patents invalid. The Oracle case seems to be that the Dalvik Virtual Machine uses code that exists in Java, but at the same time seems to say that it would be okay to use it if it was Java, but not if you call it something else. Google points out that it is something else and there is no code violation.
Microsoft on the other hand has perhaps picked up its intellectual property strategy from its experience with DRM technologies in Windows Media DRM and in its VC1 codec, both of which, like Android, were given away free and then found to have essential patents in them from other companies.
In the case of DRM it cost Microsoft $440 million to fix the problem, but in the end the Intertrust patents which were acquired by Sony and Philips (when they bought Intertrust) were licensed for a flat fee on a ten year basis to Microsoft and lie at the heart of both Windows Media DRM and its new PlayReady DRM.
But this case, like the Oracle, one is equally ill-thought out. It looks like Microsoft hopes to keep Motorola to itself, as a loyal Windows Phone 7 customer, at the expense of its Android phones, but of course Motorola is totally dependent upon Android. Without it, it has no viable strategy (it had tried Windows Mobile) and the fact that it has any Windows phones in its portfolio at all is more due to historical accident than part of future strategy. Nowhere in legal history has anyone ever convinced a company to work with it by suing, and this will have pushed Motorola further and further from the Microsoft mix, not closer.
And considering that Motorola both has more cellular patents than Microsoft and that it is NOT the originator of the open source Android, but Google is, this is really Microsoft copping out of a real fight. It looks to be running scared of direct confrontation with Google. It is also a little late to be suing Android. You don’t sue a business when it has overtaken you and taken market leadership, you sue them earlier, when the system first comes to market. Otherwise it looks to the court like part of your marketing strategy.
Microsoft claims it has patents in synchronizing email, calendars and contacts, the scheduling of meetings and notifying applications of changes in signal strength and power and it has gone to the International Trade Commission (ITC) with the same complaints.
Microsoft increasingly behaves like it invented email when in fact there were some 50 email clients before Microsoft entered the market and multiple server types. The most it can claim is that it owns the active repository based Exchange approach to email, and its ActiveSync server which was anyway a compromise with the cellular community, a way of allowing handset designers into the closed monopolistic Exchange world it created in the 1990s, when virtually every major Western enterprise standardized on Exchange for their email. But Microsoft invented nothing major here.
Nokia, Apple and most of the major handset vendors have licensed ActiveSync, an interface designed for them to license against and design to, and Motorola licensed it in 2004, so surely it has the right to use the software to sync with handsets already?
Microsoft will not be thanked by anyone in the cellular community and we expect that this legal action will quietly disappear before it ever reaches a courtroom, under subtle pressure from operators like Verizon, which relies on Android and which also has a strong Microsoft relationship.
The phone companies AT&T, Sprint and Verizon all issued suits at Vonage based largely on the fact that they had invented a way of interfacing VoIP to the public switched network. So any VoIP player that interfaced to their had to pay royalties. This was a neat way of maintaining a monopoly through the courts. And it worked and almost bankrupted Vonage. This Microsoft suit is almost the same. If you want to sync with OUR customers on OUR software you must pay us royalties. It’s of course nonsense, as were the Vonage suits, but courts found for the major US telcos and they might find for Microsoft. If they don’t then companies like Nokia will want their ActiveSync license fees back.
Any such decision in Microsoft’s favor would bang a nail right through any hopes of Microsoft ever gaining a foothold in mobile ‘ if it raises the price of Android or even hurts its players, AT&T and Verizon, for a start, will not easily forgive Microsoft.
Much the same is true of Oracle and its Java Virtual machine. If it creates hurdles for Android, beyond a few million dollars of licensing payments from Google, then the operators who have invested in Android and who rely on it, will not thank Oracle and are more likely to boycott its technology. That’s how they have behaved in these disputes in the past.
In its argument, Google says that, before Oracle acquired Sun, it criticized Sun’s policy of licensing the test compatibility kit needed to obtain an open source license for Java. It goes on to claim that Sun released the specs for its Java VM in a way that allowed other software houses to build “clean room implementations of Sun’s Java specifications.” But it says Sun was unwilling to release the test compatibility kit (TCK) under the same open source license as the rest of Java, to ensure it preserved a licensing revenue stream, plus control of which projects would be accepted as part of the platform.
Despite previously criticizing this two-tiered approach, Oracle has now “ignored the open source community’s requests to fully open source the Java platform,” according to the Google filing.
“Although software applications for the Android platform may be written in the Java programming language, the Dalvik bytecode is distinct and different from Java bytecode,” Google goes on. “The Dalvik VM is not a Java VM.”
Both suits are cynically climbing on the bandwagon of Android in the hope of a payday, and even if they get a payday of some sort out of the adventure, it will not help their core mobile businesses, and it will raise resentment against them.