What Is Going on With All These Patents?

So Microsoft and Apple ganged up on Android and bought some mobile patents out from under their nose, and Google said that wasn’t cool and they were under attack, but Microsoft said they offered Google the chance to share the patents with them and Google turned them down, only, wait, that was for another set of patents, while in the meantime Apple are preventing Samsung from selling Android tablets because they might infringe on their patents, and…

Oh gosh. Let me start over.

What Is a Patent?

If you patent an invention, that means you have the exclusive right to make, sell, or use it. An “invention” doesn’t have to be something tangible, like an electrical circuit or a machine made out of springs and cogs; it can be a process, or even a UI gesture. For example, Apple holds a patent on a specific type of pinch-to-zoom gesture, where the user pinches twice in quick succession.

When the trade-off for this exclusivity is that the details of the patent must be publicly disclosed; here’s the U.S. Patent Document for the aforementioned pinch patent (via Patently Apple).

I hope you like legalese

This means competitors can learn about the invention, but can’t copy it. Indeed, if they did copy it — even accidentally — they could be in trouble; the company that owns the patent can bring a lawsuit against them.

Patents can be sold and licensed, on the terms of the patent holder, so just because a company didn’t invent a process, that doesn’t mean they’re necessarily unable to use it. It’s not surprising, then, that patents can be extremely valuable. Sometimes companies will use patents as negotiating chips: “you don’t sue us for infringing on this and we won’t sue you for infringing on that.”

Apple vs Samsung

Back in April, Apple sued Samsung over its Galaxy range of Android devices, claiming that Samsung copied Apple’s technology, UI, and style (including, apparently, the rounded-rectangle-with-a-black-border design of the tablet itself). Samsung soon responded that they’d sue Apple right back, for possibly violating their patents in communications standards.

More recently, at the start of this month, Samsung agreed to stop selling the Galaxy Tab 10.1 tablet in Australia until a court comes to a decision on whether the Tab infringes on Apple’s patents or not. And just a couple of days ago, a similar injunction was granted across Europe. This hasn’t extended to the USA… yet.

Apple is also suing Motorola and HTC on similar charges, though this hasn’t blocked sales of their devices yet. Interestingly, they have not sued Google about Android itself.

Everybody vs Android

The Apple lawsuits are examples of direct action due to patents. But patents can also be used to fight indirectly, as has happened recently with what are known as the Novell and Nortel patents.

In October of last year, the company Novell sold a package of over 800 software patents regarding management, security, identity and collaboration to a group made up of Microsoft, Apple, EMC, and Oracle — no Google present.

(However, the US Department of Justice later announced that Microsoft couldn’t own the Novell patents, for fear that this would prevent open source software — which, remember, includes the Android OS itself — from competing, and would have to sell them back to Novell’s parent company, though would retain a license to use the patents.)

In April of this year, another company, Nortel, announced that they would sell over 6,000 of their patents, this time regarding wireless, 4G, data networking, and more. These would clearly be relevant to any company in the mobile market, and Google placed a bid. They actually got a little silly, placing bids like $3.14159 billion (pi times one billion) rather than just $3 billion… and eventually, they lost. Again, the patents went to a group of companies that included Microsoft and Apple (together with RIM, EMC again, Ericcson, and Sony).

Here’s where the mud-flinging starts. Google’s chief legal officer wrote a blog post, When patents attack Android, where they railed against the other tech companies were partaking in “a hostile, organised campaign against Android … waged through bogus patents”, listing the Novell and Nortel patents and Apple’s lawsuits as examples.

Microsoft’s chief lawyer shot back:

Brad Smith, Microsoft General Counsel

…as did their lead corporate communicator:

Click to enlarge the email screenshot.

(Note that both of these are about the earlier Novell patents rather than the then-recent Nortel deal.)

Google updated their post, stating that of course they didn’t want to do a joint bid with Microsoft and Apple, because if Google only shared the patents rather than owning them outright, they would offer no protection to Google against other potential attacks.

Frank Shaw tweeted back (1, 2, 3, 4):

Let’s look at what Google does not dispute in their reply. We offered Google the opportunity to bid with us to buy the Novell patents; they said no. Why? BECAUSE they wanted to buy something that they could use to assert against someone else. SO partnering with others & reducing patent liability across industry is not something they wanted to help do.

It seems that Google did not respond to that.

These software patent cases are getting more and more ridiculous, I can only assume that eventually some sort of reform will be called for. In the meantime, keep an eye on the news; this is far from settled.