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Android’s Patent Wars – A Checklist

It’s not looking good for Android. Congress could fix this in a heartbeat by doing away with software patents, the only solution that makes sense, but they’re otherwise engaged right now and not likely to be much help. In the meantime, Android is involved in so many patent disputes it’s hard to keep count. Oracle’s suing Google, Apple’s suing HTC, and Microsoft is suing, or threatening to sue, anyone who makes a handset with the Android brand. Even with Groklaw doing their best to supply legal ammunition for Android’s defenders, it’s not looking like Android is going to get out of this unscathed, which will only cost consumers and enrich the trolls

Here’s a quick rundown on Android’s patent ills, just to help you sort out the players. The game is changing daily, so I may have left something or someone out. If so, please forgive me.

Oracle vs Google: Oracle is suing Google over Java patents they claim are being violated by Android. On June 12th Google suffered something of a set back when Judge William Alsup, commenting on a Daubert motion filed by Google, expressed the opinion that Google “possibly” infringed on at least some of Google’s patents:

“‘In reading the Daubert briefing, it appears possible that early on Google recognized that it would infringe patents protecting at least part of Java, entered into negotiations with Sun [Microsystems] to obtain a license for use in Android, then abandoned the negotiations as too expensive, and pushed home with Android without any license at all,’ Alsup wrote in the letter filed in US District Court for the Northern District of California.

“‘How accurate is this scenario?’ he added. ‘Does Google acknowledge that Android infringes at least some of the claims if valid? If so, how should this affect the damages analysis? How should this affect the questions of willfulness and equitable relief? Counsel should be prepared to address these issues at the hearing.'”

On Friday, however, Judge Alsup granted Google’s Daubert motion while setting the trial date for October 31:

“As for Google, the judge conceded to Google’s Daubert motion, which would exclude a damages report and the related testimony of its author before a jury. That’s especially helpful to Google as a new email authored by Google’s senior VP of mobile Andy Rubin has surfaced talking about doing Java anyway and making enemies along the way.”

Currently Oracle is seeking somewhere between $2.6 and $6.1 billion. However, the judge has already opined that he thinks that figure might be too high.

My bet is that Google’s got an ace up their sleeve – but that could just be wishful thinking. Groklaw is doing an excellent job covering this case, if you’d like to watch it unfold.

Apple vs HTC: This is the case everybody is watching right now. HTC is the handset maker that not only produced the first Android phone, the HTC Dream, but is the company Google chose to produce their own Nexus branded phones. When this suit was filed last year, Cupertino was claiming Android violated 20 patents, a number that has since been whittled down to two. Apple is seeking to ban the import of all HTC devices running Android.

No one seemed to be too worried about this case until about two weeks ago, when the U.S. International Trade Commission (ITC) made an initial ruling in Apple’s favor. From what I gather, it’ll be difficult for Google to remove or work around these patents, so it’s assumed that if Apple prevails they’ll be going after other makers of Android handsets.

In addition to these two patents, Apple has now filed against HTC claiming infringement of five additional patents, all of which are also included in another case pending against Samsung.

Late last week, Google chairman Eric Schmidt announced that Google would “defend” HTC, though few details were given:

“We have seen an explosion of Android devices entering the market and, because of our successes, competitors are responding with lawsuits as they cannot respond through innovations. I’m not too worried about this.”

We’ll see.

Apple vs. Samsung: This might be the real reason that Apple’s going after HTC. Unlike HTC, Samsung is a mature company with an extensive patent porfolio, and it very well could be that they have a patent that Apple needs. If so, Apple’s suits against both Samsung and fellow Open Handset Alliance member HTC might be to gather ammunition to use to cut a deal with Samsung – but this is all conjecture on my part.

It’s interesting, however, that last November Samsung teamed with HTC to purchase from patent troll Intellectectual Ventures, access to their entire portfolio of more than 30,000 patents to use against any legal opponents.

So far it’s not evident that this has done any good, but it ain’t over until the gal with the weight problem sings. Again, we’ll see.

Microsoft vs. Everybody: Actually the word “everybody” isn’t quite right, for so far Redmond seems to only be going after relatively smaller players who don’t have the deep pockets necessary to legally engage them on a level playing field. According to Tech Drive-in, the companies currently paying blackmail money to Ballmer & Company for the use of Android are Velocity Micro, General Dynamics Itronix, Onkyo Corporation, Wistron Corporation and HTC. In addition, MS is in negotiations with Samsung (they want $15 per handset, Samsung wants to get the figure down to around $10) and have filed suit against Barnes & Noble over their Android based ebook reader.

Does Microsoft really have valid patents that are being infringed upon by Android? Who knows? And we won’t know until someone with some deep pockets calls their bluff.

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