9 Comments

Summary:

Microsoft has long used a stealthy strategy to coerce device makers into paying a license for the use of Android software. That may get harder, after the Chinese government published a list of its patents.

Red Android mascot
photo: Roshan Vyas

Microsoft has long demanded licensing payments from Android device makers, but the identity of the relevant patents — which Microsoft uses to justify a so-called “Android tax” — has until now been something of a mystery.

The nature of those patents is now clearer, however, after the Chinese government published a list of 310 patents as part of an antitrust review into Microsoft’s acquisition of Nokia.

The patents on the list, as reported by Ars Technica, cover everything from GPS features to custom search tools to browsing functions. They also include standard-essential patents, as well as ones obtained in the “Rockstar” deal, in which a consortium of Google rivals jointly bought the intellectual property of defunct Canadian telco Nortel.

While Microsoft had announced in an April blog past that the Chinese government had identified “approximately 200 patent families that are necessary to build an Android smartphone,” it did not say which ones.

What it means

The fact that the patent list is now public could make it harder for Microsoft to browbeat companies into licensing deals. Until now, Microsoft’s strategy has involved telling the world that device makers are paying up, but failing to explain what exactly they are paying for — and, most likely, wrapping the whole process in non-disclosure deals.

The public nature of the list could make it easier for Android makers to design around the patents or else try to invalidate them in court. It could also trigger renewed debate in the U.S. over the country’s dysfunctional patent system which, by one account, has produced more than 250,000 smartphone-related patents.

For Microsoft, a lot is riding on the future of its Android licensing business. Recent reports suggest that the company could earn nearly $6 billion a year by 2017 if it gets a cut on even half of every Android device sold worldwide. Consumers, meanwhile, are less likely to be buoyed by the news that the Android platform, which is billed as free and open, could require a long-term Microsoft tax of $1 to $8 per device.

  1. “It could also trigger renewed debate in the U.S. over the country’s dysfunctional patent system”???

    Geez. Here we go again with Jeff John Robert’s constant, never-ending bias against inventors.

    Jeff, in order to even be able to enter the debate that the US patent system is dysfunctional, pray tell me how the US patent system is dysfunctional at protecting the rights of inventors. Because if you can’t, then the patent system is NOT dysfunctional, simply because protecting the rights of inventors is what the patent system was set out to do.

    Additionally, you have yet to answer my inquiry that questioned the very core of all of your patent reform articles of late, particularly those regarding the Innovation Act. My question was this:

    “Would the Innovation Act have hurt small inventors and empowered large corporations in the small inventors pursuit against infringement from the large corporations?”

    Reference is here: http://gigaom.com/2014/05/21/patent-reform-dies-in-senate-as-leahy-pulls-plug-on-key-bill/

    You NEVER addressed this core underlying question in ANY of your patent reform articles, and with your bias against inventors, I assume it was probably with good reason. I’m still waiting for your response.

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    1. Mike, I’m glad that you take the time to read and contribute your opinions, but by now I’m not sure we’re ever going to see eye to eye on these issues. I can’t shake the feeling that you might be a Texas lawyers, and it’s in your interest to defend the status quo, no matter how egregious the abuses permitted by the current patent system. For what it’s worth, I think the Supreme Court’s recent series of 9-0 patent decisions also suggest there’s something wrong with the patent system.

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      1. (Note: I really hate to be so “in your face” with my comments. I’m really a nice guy. However, when we are dealing with a vital issue involving the possible creation of more laws that would affect (and possible damage) all the small inventors like me who work hard to contribute to the innovation that makes the USA the world leader in innovation, we need to be very careful in making sure we 1) identify the actual problem at hand, if it exists, and 2) address the actual problem without creating new problems.)

        So, likewise, Jeff. I’m glad that you take the time to read and respond to my comments. However, I can’t shake the feeling that GigaOm has deals with big corporations in the Valley, and it’s in your interest to persuade the status quo that patents, and subsequently the inventors they set out to protect, are evil, no matter how egregious and false the information and opinions are that you publish. For whats it’s worth, I think the Senate Judiciary Committee’s recent decision to take the Innovation Act off the agenda suggest there’s something wrong with patent reform. Additionally, for what it’s worth, according to your article where a judge found a lawsuit to be “obviously baseless” and thereby shifted the defendant’s legal fees to the plaintiff — http://gigaom.com/2014/06/02/patent-troll-must-pay-victims-lawyer-bills-in-early-test-of-new-supreme-court-fee-shifting-rules/ — I think the patent system is working fine, that is, if patent “trolling”, as it’s called, is what has you all worked up. If their is not patent infringement, and if the lawsuit is found to be baseless, then plaintiffs shall be dealt with accordingly.

        Nevertheless, how is it that you, who previously practiced law according to http://about.gigaom.com/team/editorial/ is fearful that I might be a lawyer, and a Texas lawyer at that? Wow. Maybe the feeling I can’t shake mentioned above is true.

        Like I said here — http://gigaom.com/2014/05/21/patent-reform-dies-in-senate-as-leahy-pulls-plug-on-key-bill/ — I’m a nobody. So for the record, you could not answer a simple “yes or no” question that addressed the very core of your patent reform articles … from a nobody.

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    2. Bob Johnson Monday, June 16, 2014

      How can you not see the dysfunction in the US patent system? Patents are only supposed to apply to things that are non-obvious to other experts in the field. A large number of major software and process patents, ones that are likely important to this Android debate, are extremely obvious or ridiculously vague/general and should never have been approved.

      Take this patent as just one example of many (I picked it at random from the Ars Technica article that Roberts links to in his post):

      https://www.google.com/patents/US8255379

      It’s incredible vague and its language encompasses virtually every approach one might take to the problem. This is the example that the patent application uses:

      In an example, the query may be “Seattle water fountains near 4th ave. and Pike St.” “Seattle” can map to boundary data in the contextual dataset, “4th ave.” may map to certain vector data in the contextual dataset, and “Pike St.” may map to other certain vector data in the contextual dataset. “Water fountains” may map to a set of entities that have an attribute “fountain” in the custom dataset. Using spatial processing (e.g., locating the intersection of 4th Avenue and Pike Street in the contextual database), mapping of subsequences of query tokens to particular entities in the datasets can be undertaken, and results can be displayed to the issuer of the query on a display screen of a computer device.

      This is so incredibly basic and obvious it makes me cringe to read it. How else are you going to solve this search task? Digital maps encode locations with points, vectors and polygons. The properties of each object are stored in a database somewhere. This is a basic element of object oriented program design and digital map design. Search applications map query tokens to data set entries (notice there’s no specifics about how this mapping might happen). This is the simplest and most obvious way to encode map data and the simplest and most obvious way to search through data. There is zero “invention” or “innovation” in this patent and yet somehow people must license it.

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      1. Actually, the patent system works very well as is, because patent validity can always be challenged.

        The patent system repeatedly denies patent applications (they have denied mine many times), and only valid, inventive, and non-obvious patent claims are allowed in any patent application. They use experts to examine patent applications, and they have a wealth of prior art at their disposal that they put together to reject claims in patent applications they receive.

        Nevertheless, if one does find that a granted patent is obvious, then it can always be reexamined at the USPTO and then rejected based on the merits. Just present your evidence and make your case, clearly showing how the claims were obvious at the time of the invention, and the patent is thrown out.

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        1. Bob Johnson Monday, June 16, 2014

          “Nevertheless, if one does find that a granted patent is obvious, then it can always be reexamined at the USPTO and then rejected based on the merits. Just present your evidence and make your case, clearly showing how the claims were obvious at the time of the invention, and the patent is thrown out.”

          There’s a level of willful naivete here that I’m not quite understanding. Particularly in this paragraph but really in the entire post. You’re describing how the patent system SHOULD work in the most idealized world and likely how it does work for the small time inventor.

          In reality, large companies very regularly get patents for obvious things but the cost/benefit of a legal challenge exceeds the licensing costs. The patent I linked to and quoted is a perfect example as the basic premise of the system doesn’t just describe how to search for locations, but by changing some of the nouns, can be used to describe how to search for anything by taking successive subsets of a data set.

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          1. >> You’re describing how the patent system SHOULD work in the most idealized world and likely how it does work for the small time inventor.

            Then the patent system has been shown to work at protecting inventors, and that’s a good thing then. What I described is not willful naivete; that’s simply following the law. For more information on the matter and how the patent system works, I encourage a good read of the MPEP (Manual of Patent Examining Procedure): http://www.uspto.gov/web/offices/pac/mpep/ (Warning: it’s really long.)

            >> In reality, large companies very regularly get patents for obvious things but the cost/benefit of a legal challenge exceeds the licensing costs.

            If someone who is being pursued for licensing by an entity believes the patented matter at hand is obvious, then they should not pay the licensing fees and make their case to the entity saying to pay up. You don’t need a lawyer or a court case for that. Like anyone else, large companies don’t want to waste their time where there is no money to be made, especially if the argument for obviousness is solid. But if the argument does not prove obviousness, and said someone indeed wants to use the patent at hand, then credit must be given where credit is due. So an arrangement for licensing is likely established. Everyone must play by the same rules here. So large companies must license from small time inventors all the same.

            If this doesn’t sound fair to the person involved in the matter (and it should, because its fair game all around), then he/she should then innovate something new and/or better and/or more valuable and work around the patent. So create something better. Maybe even license it back to the entity if they want to use your invention. This is competition at its finest. And this system protects small inventors from large corporate bullies who steal and monopolize. And this is what people like Elon Musk hangs his hat on (even if he contradicts himself by not realizing that market adoption is not the same thing as innovation). (See some of the comments posted on Robert’s other article on GigaOm on Elon Musk for that reference.)

            >> The patent I linked to and quoted is a perfect example as the basic premise of the system doesn’t just describe how to search for locations, but by changing some of the nouns, can be used to describe how to search for anything by taking successive subsets of a data set.

            But the “basic premise of the system” in your example is irrelevant with regard to licensing/infringement. What matters from a legal perspective are the patent claims, and nothing more. And for infringement, an infringer must perform each and every step of a patent claim in order to be found to infringe.

            Regarding “changing the nouns”… A patent can have a broad reach, true, and obtaining a broad reach is every inventor’s goal when pursuing a patent in order to have the best patent protection available. However, having too broad a reach increases the risk for invalidity. Because, if by “changing some of the nouns”, a combination can be found to exist in prior art (or a combination thereof), then the patent can easily be deemed invalid, making the re-examination easy, and also making a challenge to an entity’s request for licensing fees all the more easier.

            But most importantly, it’s not really possible to create new patentable material simply by “changing some of the nouns”, because the reach of a patent’s claims only extend to what is written in the specification of the patent application, as understood by a person skilled in the art at the time of the invention.

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  2. Ownership of a car is an interesting concept.
    Ownership of an idea is a malevolent concept.
    Humans deserve better.

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    1. /Sarcasm
      So let’s all “boo” Steve Jobs for obtaining his patents to protect Apple’s work on the iPhone (search YouTube for his first presentation of the iPhone), and let’s all throw our smartphones out the window, because we deserve better than what work the iPhone did for us and the smartphone market.
      /End Sarcasm

      Rather,
      1) Please provide evidence for your claims here, and
      2) I suggest:
      A car depreciates in value over time. Likewise, the value in ownership of said car.
      But a collection of protected ideas, now actualized by way of the protection, can allow one to create something great. Like the light bulb. Or even insanely great. Like the iPhone. And this value is only limited by those who want to suppress it.

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