Are Microsoft and Nokia closet patent trolls? Let the EC decide.

Updated: Google (s goog) has filed an antitrust complaint with the European Commission against Microsoft (s msft) and Nokia (s nok) and is also tattling on the companies with U.S. regulators, accusing them of patent-troll-like behavior, according to the Wall Street Journal. It’s difficult to read much into the merits of Google’s claims at this point, but the move is certainly brash. Don’t be too surprised that Google is ready to take on Microsoft after a drawn-out legal battle with Oracle(s orcl), though: filing a complaint with the EC means Google doesn’t have to do the legwork.
Essentially, the Journal reports, Google says Microsoft and Nokia have entered into an agreement with a patent troll called Mosaid in order to scare device manufacturers away from choosing to build Android devices. Because Mosaid has so many patents, and even licensing agreements with Microsoft and Nokia, Google alleges that companies that choose to build Android devices instead of Windows devices run the risk of being sued by Mosaid. Microsoft and Nokia get to share in the profits of any successful patent claims, but don’t have to dirty their hands and don’t have to renege on previous agreements over supporting open-source software such as Android.
While the allegations certainly look damning on the surface, being guilty by association with a patent troll isn’t the same as actually being guilty of antitrust violations. In the event of a lawsuit Google would actually have to prove that Microsoft and Nokia are trying to stifle competition unfairly, even if they haven’t yet done so. Google itself hasn’t been sued by Mosaid, Microsoft or Nokia with regard to the patents at play here — they likely relate to hardware and not Android — so perhaps its device partners have felt the squeeze. Either way, a complaint to regulators puts the burden of finding wrongdoing on them and not on Google’s legal team.
While Google declined to share the actual complaint it filed with the Commission, a spokesperson did send over this list of facts the company claims are in its favor:

  • 2005 docs where Nokia vouches support for open-source software and promises not to assert patents against the Linux Kernel (note: Android is based on the Linux Kernel). See: Nokia SEC filingNokia white paperNokia legally binding commitment re: Linux kernel
  • July 2011 Nokia submission to FTC about their concern of the transfer of standards essential patents to trolls
  • September 2011 Nokia CEO comments about MSFT partnership (at 6:17) and CFO comments about patent strategy
  • October 2011 Barnes and Noble letter to DoJ outlining anti-competitive concerns about the Microsoft/Nokia partnership
  • Mosaid’s press release on the patent transfer from Nokia: the salient quote is “This is one of the strongest standards-essential wireless portfolios available on the market, and we are thrilled that we have acquired this outstanding portfolio and have the opportunity to monetize it.”
  • Mosaid’s CEO talking to BNN, saying “We believe the revenues associated with this one licensing program will exceed the revenues combined for the entire 36-year history of our company.”

A lack of hard evidence might also explain why Google has filed its complaint in Europe rather than in the United States. European regulators have been more active in pursuing large corporate entities for antitrust violations, and have in recent history levied mega-fines against both Microsoft and Intel (s intc), among others. It was the European Commission, for example, that held up Oracle’s acquisition of Sun Microsystems long after the U.S. Department of Justice had approved it.
If anything, the patent battles in the wireless space are a bit ridiculous in quantity if not occasionally in merit, but they’re illustrative of just how important and profitable the space is. Google might not want to do any evil, but it certainly doesn’t mind accusing others of doing it. And now that it officially has Motorola Mobility’s patents in its treasure trove, we’ll see how long it can hold out from filing at least one patent lawsuit. You know, just to test the waters.
Update: A Microsoft spokesperson sent over this statement on Google’s complaint, which suggests more than a hint of bad blood between the two companies on a variety of fronts:

Google is complaining about patents when it won’t respond to growing concerns by regulators, elected officials and judges about its abuse of standard-essential patents, and it is complaining about antitrust in the smartphone industry when it controls more than 95% of mobile search and advertising.  This seems like a desperate tactic on their part.

Image courtesy of Shutterstock user O2creationz.