Android: Swimming With the Patent Sharks

The folks in Mountain View should be celebrating. After all, Google Android (s goog) has been on a tear these past six months, claiming 32 percent of all new smartphone purchases, according to Nielsen data. Dampening the mood at the Googleplex, however, is a rash of lawsuits directly or indirectly aimed at Android. Google may be winning in the mobile market, but it’s unclear how it will fare in court.

It’s also not clear what the company could have done differently. Lawsuits, after all, appear to be par for the course in the mobile market, with at least 20 lawsuits being flung between companies as diverse as Kodak (s ek), Oracle (s orcl), Toshiba, Samsung, and RIM (s rimm).

But Android particularly annoys Apple (s aapl), Microsoft (s msft), and Oracle, albeit for very different reasons.

Apple, design purist that it is, disdains the momentum Android has seen. Apple is, of course, the early winner in the smartphone market, and its lawsuit against device manufacturer HTC seems to be a means to slow Android’s advances. It hasn’t worked. Not content to sit by and watch its market share erode as developers flock to open-source Android, however, Apple has loosened its grip on developers and is making a serious attempt to win in the market, not simply the courts.

Microsoft, a serial underachiever in mobile, despises Android for the same reason it has long wrung its hands over Linux servers: Microsoft doesn’t know how to compete with free. Google gives Android away, but Microsoft has repeatedly stressed that patent-encumbered Android isn’t free. As Microsoft CEO Steve Ballmer told The Wall Street Journal, “Android has a patent fee. It’s not like Android’s free. You do have to license patents.”

This is the same strategy Microsoft has employed in the server market, signing up licensees to its patent portfolio based on vague FUD (fear, uncertainty and doubt) that Linux violates its patents. If Microsoft can force Google to license its patents, it can make it harder for Google to keep Android free.

It’s by no means clear that Microsoft will win. As TechDirt notes, at least some of the patent claims made are absurd. But it’s possible, as Mary Jo Foley speculates, that Microsoft is hoping to boost interest in Windows 7 by creating FUD around Android. Good luck with that.

The most interesting of the Android patent lawsuits, however, is Oracle’s, in large part because it seems the least motivated by a desire to cripple Android. I’ve written that Oracle sued Google to skim some of Google’s mobile money for itself, and I continue to believe this is part of Oracle’s rationale.

But there’s more to the story than that. Much more.

First, Oracle inherited the lawsuit from Sun. It didn’t initiate it. Sun was actively preparing to sue Google over Android in order to protect Java. Oracle was apprised of the lawsuit during its short due diligence process prior to its acquisition of Sun, and decided to move forward with it, but the suit was founded under Sun CEO Jonathan Schwartz’s leadership, not Oracle CEO Larry Ellison’s.

Second, the lawsuit is likely more related to Oracle’s ability to make money from licensing Java ME generally, and not specifically to Google. Indeed, sources inside Sun/Oracle have told me that negotiations with Google involved roughly $0.00 changing hands. The problem wasn’t one of negotiating a license fee for Java and its associated patents. The problem was more fundamental: Sun (then Oracle) had the option to let Google attempt its end-run around Java ME licensing restrictions, but undoubtedly it would then come under increased pressure from RIM and other licensees not afforded that leeway. To keep its Java ME licensees happy, Sun (Oracle) couldn’t afford to allow Google to snub the Java ME licensing requirements.

So why didn’t Google just go along with Sun and take a fee-free license to use Java ME? Because doing so would have required Google to keep its Java implementation consistent with the standard instead of forking it with its Dalvik virtual machine. As much as Google might talk about standards, Google has much to gain by keeping Android applications on the Android platform, rather than allowing them to run on competing platforms like RIM.

Google has now answered Oracle’s complaint, denying all allegations and eviscerating Oracle for hypocrisy over the open-sourcing of Java. What Google doesn’t do, however, is reveal its own reasons for wanting Java open-sourced, which I believe have much to do with forking Java and little to do with any particular affection for open source.

It thus does little to answer the critiques laid out in Oracle’s response to Google’s formal answer to Oracle’s complaint:

In developing Android, Google chose to use Java code without obtaining a license. Additionally, it modified the technology so it is not compliant with Java’s central design principle to ‘write once and run anywhere.’ Google’s infringement and fragmentation of Java code not only damages Oracle, it clearly harms consumers, developers and device manufacturers.

Whether Oracle is being hypocritical or not is immaterial. Whether Java should be open-sourced or not is also immaterial. Google’s contention that openness is essential to the mobile industry is also immaterial.

What is material is Oracle’s accusation that Google chose to circumvent the Java ME licensing process which RIM and others abide. That is what is at issue, not Google’s appeals to the open-source crowd.

Ironically, then, Oracle, perhaps the greediest of Android’s patent foes, may well have the purest motives in suing over Android. Of the three litigants, only Oracle seems to actually be defending its patents, rather than attempting to throttle Android’s momentum.

Image courtesy flickr user miusam-ck

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