Is Rockstar Android’s SCO?

Am I the only one who’s been having a bit of SCO déjà vu when it comes to Rockstar’s suit against Google and a bevy of Android handset makers?

You remember SCO, don’t you? They’re the company, once a major Linux player with the Caldera distro, that bought the rights to Unix then turned around and sued IBM for $1 billion, claiming that Big Blue had been copying Unix code into Linux. They’re also the company that sued two of their former clients, AutoZone and Daimler Chrysler, for moving to Linux. Trouble was, they had nothing, not even the copyrights to the code they claimed had been infringed.

There’s plenty about Rockstar vs Everybody Android to remind me of the SCO fiasco. Enough so to make me wish we still had PJ and Groklaw to take care of the play-by-play. Last week, Google returned fire. Wouldn’t it be nice to have PJ’s take on this?

Over eight weeks have passed since Rockstar filed the initial suit claiming patent infringement. The company is basically a shield to protect its owners, Microsoft, Apple, Blackberry, Sony and Erricson, from financial risks, other than the $4.5 billion they’ve already invested by buying the patent portfolio of bankrupt telcom Nortel a little over two years ago. That portfolio seems to be about all they possess. At the time of the sale, the patents were widely seen as a potentially dangerous deal-changer in the mobile world as it was believed that many dealt with what have become de facto mobile standards.

Rockstar’s suit is two-pronged. Its action against the handset makers focuses on the use of Android. Oddly, Google isn’t being sued for Android related issues but for its search technology.

With last week’s response, however, Google has come to the forefront of the Android battle by making it very clear to the court that Rockstar’s actions against HTC, Samsung, LG and the like hit at Google’s core. The search company denies any infringement by the operating system it develops and paints an accurate picture of the consortium as a patent troll.

“Rockstar produces no products and practices no patents. Instead, Rockstar employs a staff of engineers in Ontario, Canada, who examine other companies’ successful products to find anything that Rockstar might use to demand and extract licenses to its patents under threat of litigation.”

Google is asking the court to rule that neither it nor its hardware partners infringe on Rockstar’s patents through the use of Android. It’s told the court that Rockstar has approached as many as 100 companies seeking licenses deals. As pointed out by Neil McAllister in the Register, there’s no word on how successful this licensing effort has been.

“But there is some evidence that Rockstar’s efforts haven’t been going as well as its constituent companies may have hoped. On Monday, Bloomberg reported that Rockstar has been in talks to sell off a portion of its patent portfolio, indicating that what was once thought to be a goldmine might not be delivering enough return on its hefty purchase price.”

Unless Rockstar’s patents are so week as to be laughable, the courts are not likely to be inclined to rule in Google’s favor and will probably force Google and its partners to defend themselves against the Rockstar suit. A likely outcome to Google’s petition is that the court will grant partial relief by striking out some patents but not others–but this is only conjecture.

What Google intends to do going forward, of course, is anybody’s guess. With the patents it inherited with the purchase of Motorola Mobility, it might have some IP it can use to gain leverage with at least four of the five companies that own Rockstar. On the other hand, if it’s true that Rockstar’s patents are weak, that the consortium bought a pig in a poke, then Google and its partners may decide to just duke it out in court.

That could be a risky choice, no matter how good a case Google thinks it has. Patent juries have been known to make decisions that fly in the face of reason.

At the end of November, online retailer Newegg lost a closely watched case that was believed to be something of a slam dunk when it was ordered to pay patent troll TQP Development $2.3 million, a verdict Newegg plans to appeal.

After the verdict was read in that case, Newegg’s top lawyer, Lee Cheng, explained to Ars Technica why it was important to fight the case instead of simply purchasing a license.

“…I could have taken the path of least resistance. I could have said, ‘Everyone else did the same thing, so we’re no worse off than anyone else.’ But we couldn’t afford to pay people off the way some of our competitors were paying. We had to do something different. And it’s the right thing to do.”

In the meantime, Rockstar’s case seems to resemble SCO’s attempt to take on IBM and Linux. Unfortunately, the patent world is much more murky than copyrights.

Christine Hall

Christine Hall has been a journalist since 1971. In 2001, she began writing a weekly consumer computer column and started covering Linux and FOSS in 2002 after making the switch to GNU/Linux. Follow her on Twitter: @BrideOfLinux

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