Apple and Microsoft: Frenemies beat back Android axis in mobile patents

[UPDATED 8/28/12] For over a year now, we’ve been hearing about the mobile patent lawsuits involving Apple, HTC, Microsoft, Motorola Mobility, Samsung, and other key tech companies. For most of us, it seemed like legal mumbo-jumbo and schoolyard bullying by all concerned. But there’ve been a bunch of court decisions and revelations recently that have made clear what’s really at stake and why we all should care.

I’m also convinced now that Apple is mainly in the right and its Android competitors are playing dirty. No wonder Microsoft has joined in on Apple’s defense. When all is said and done, the Apple/Microsoft argument should win; fortunately in the courts, it appears that it may. (A big shout-out goes to the FOSS Patents blog, whose author Florian Müller — an experienced patent consultant — has over the months provided an amazing education on all the issues involved. Note that after this post was written, Müller became a paid consultant to Oracle over its unrelated lawsuit against Google over Android patents, a case Oracle mainly lost.)

The patent cases that got the attention but aren’t the main show The case that got most of the media attention was Apple’s lawsuit against Samsung for copying its design patents. In simple English: Samsung’s Galaxy Tab 10.1 was designed to look like an iPad, and Apple cried foul at that potential market confusion. There are several kinds of patents a company can hold to give them a monopoly on their “nonobvious” ideas — their inventions — and one is for the design of a product. Such design patents are common for apparel, handbags, furniture, wristwatches, and the like; they’re meant to prevent a goods maker from cloning a competitor’s design to fool buyers.

Design-conscious Apple also uses design patents to ensure that competing products look different. That’s why Motorola Mobility smartphones and tablets have that distinct corner shape — you know instantly that they’re Motorola products and, as important, not Apple ones. Samsung’s Galaxy Tab 10.1, the first real challenger to the iPad, by contrast looks a lot like an Apple iPad. Apple’s sure that was intentional — and that Samsung is doing more of it since their legal fight began. Most courts appeared to agree with Apple so far on the basics (it looked obvious to me), though they don’t seem to believe that Apple’s design patents protect as much as Apple would like. UPDATE: It was obvious to a jury, too; a federal court in the U.S. ruled on Aug. 25 that Samsung willfully copied Apple’s patented designs and behaviors.

Then there are the skirmishes over technology patents that one company claims another has violated. Sometimes these are justified, as may be the case in Motorola Mobility’s suit against Apple (and Microsoft) related to push notification patents. Other times — as in HTC’s suits against Apple — they appear to be a convenient legal weapon meant to get a settlement from a company unwilling to fight.

As has been clear over the last year, Apple is more than willing to fight, so anyone using patents as a negotiation technique against Apple has likely come to regret doing so. Also, Apple has decided to push the issues, which has resulted in gaining or strengthening patent rights in a way that its Android-based competitors may eventually regret.

The patent fights that matter involve standards-based technologies But the design patent fight that captured most people’s attention isn’t the one that matters. No, the patent fight that matters — and involves pretty much everyone in the smartphone and tablet business — is over something called standards-essential patents. These are patents for technologies that are adopted by standards organizations. They’re treated differently than other patents precisely because they’ve been incorporated into standards.

Normally, a patent is used to ensure that no one else can produce the good or service relying on the innovation without paying a license fee negotiated by the patent holder and the business wanting to use it. If they can’t reach an agreement, the potential user has to find another way to deliver the product or service, or stop trying.

But if a patent is used in a standard, the patent holder has to agree to make it available to all comers under fair, reasonable, and nondiscriminary licenses, known as FRAND licenses. Otherwise, a patent holder could favor some businesses and abuse others by treating them differently for something they all must use because the patent is essential to a formal standard.

That’s what the significant mobile patent fight is all about. Motorola tried to use its standards-essential 3G networking patents to force Apple to license all of Apple’s non-standards-essential iPhone patents — which would make Apple give up its crown jewels to simply implement the 3G technology all smartphones require. Apple refused to what agree to what it considered excessive licensing requirements by Motorola, and Motorola sued.

Now, after months and months of legal tussling, courts in the United States, Europe, and elsewhere appear to be generally siding with Apple. So is the European Union, which expressed concern about such practices through its executive arm, the European Commission, when it reviewed Google’s pending acqusition of Motorola Mobility.

Samsung is involved in a similar case, again involving its standards-essential patents and allegations it would license them to Apple under more onerous terms than provided to others. Given that Samsung is both a major supplier to Apple (not for long, I suspect) and the leader of Apple’s Android competition, it’s easy to see why Apple got so upset and began upping the ante both in the courts and in its own patent filings. It appears to me — and I suspect to Apple, the courts, the International Trade Commission (another venue for patent fights), and the E.U. — that Google is fighting Apple unfairly through Samsung, Motorola, and HTC. (The same U.S. jury that found Samsung copied Apple’s designs also found that Samsung unfairly withheld its wireless FRAND patents from Apple.)

Even the German courts — which are considered the least likely to support FRAND claims — have decided the Android axis has gone too far. This is why so many cases have been brought in Germany, where Samsung and Motorola seemed to think they’d be favorably treated.

But the fight is not just between the Android kingpins and Apple. Similar FRAND-abuse tactics are being applied against Microsoft by Motorola and others. Microsoft of course has gotten most Android makers to license some of its non-standards-essential patents, which may be a low-level fight against Android or a response to the Android makers’ suits (I can’t tell which). But it also has joined Apple in fighting the apparent FRAND abuse, having formally lent its support to Apple in the E.U.’s deliberations over possible FRAND changes to reduce the possibility of abuse. Cisco Systems has also supported Apple in fighting Google’s, shall we say, unusual approach to FRAND.

Even in our flawed patent system, the FRAND abuses are appalling There’s a lot wrong with the patent system. Too many ideas clearly based on the physical world and nondigital processes are being given patents when used in the digital realm, for example. There’s a recent perversion for patenting business processes that is also ripe for similar abuse.

But it’s clear to me (and I’m not at all a lawyer) that although the patent system is seriously flawed, the issues raised in these FRAND suits go beyond those flaws and show a concerted effort to violate both the letter and spirit of standards-based patents. The various court rulings give me hope.

The best example so far: Last week, a Dutch district court sided with Apple in the Samsung FRAND suit version filed in Holland, with a decision that set a new standard of denying injunctions — the big immediate threat in a patent lawsuit, as an injunction can prevent products from being sold — in FRAND-related cases because they deal with the use of standards that are ostensibly accessible to all. The Dutch interpretation could help enshrine the basic openness principle behind FRAND and may lead to fewer patent battles over it. Let’s hope so.

Apple is no angel, but in this case, it’s not the devil. The Android axis is, and I hope the Apple-Microsoft alliance not only stops them in their tracks but causes a serious reexamining in Europe, the United States, and other major countries about the FRAND-abuse problem.

This article, “Apple and Microsoft: Frenemies beat back Android axis in mobile patents,” was originally published at InfoWorld.com. Read more of Galen Gruman’s Mobile Edge blog and follow the latest developments in mobile technology at InfoWorld.com. Follow Galen’s mobile musings on Twitter at MobileGalen. For the latest business technology news, follow InfoWorld.com on Twitter.