Microsoft has claimed for some time now that Google's Android operating system violates various Microsoft patents. Microsoft has entered into licensing agreements with HTC, Amazon, and others. It has sued Motorola for patent infringement, and yesterday took legal action against Barnes and Noble. One thing Microsoft hasn't done, though, is challenge Google directly.
If a man steals $100 out of your wallet, and gives five dollars to a friend, would you prosecute the man who stole your money in the first place, or the friend who unwittingly spent part of it that was shared with him? I am not saying that Barnes and Noble, Motorola, HTC, and others are completely oblivious, or innocent. But--assuming Microsoft's claims of patent infringement by Android are valid--it seems like Microsoft should be going after Google directly, rather than strong-arming the various vendors and manufacturers that are subsequently using the "stolen goods".
I posed the question to Microsoft: "If Android is violating Microsoft patents, why not just sue Google directly instead of fighting / negotiating / suing each individual vendor and manufacturer one at a time?" The response I got is that Microsoft deals with individual device makers such as Barnes & Noble because that is the point at which the patent violations are being commercialized.
A Microsoft spokesperson stated, "In the technology industry, device manufacturers are the point in the chain of commerce at which steps are taken to clear third party patent rights. The Android platform infringes a number of Microsoft's patents, and companies shipping Android devices must respect our intellectual property rights."
I spoke with Florian Mueller, a technology patent and intellectual property expert, to get additional insight on this burning question. Mueller believes that there are essentially two reasons that a company like Microsoft would pursue device makers rather than the Android OS itself: 1) device makers provide a more direct means of capturing revenue--and licensing fees, and 2) device makers can be challenged with the International Trade Commission (ITC) as well to block imports, which can't be done against Google or the Android OS itself.
Mueller explained, "If someone wanted to go after Google, the only option would be to ask for an import ban against the Google-branded Nexus. But other than that Google doesn't import anything."
Mueller added, "The fact that Microsoft targets device makers shows that it doesn't want to disrupt anyone's business but is interested in license deals on commercially viable terms. Device makers are in a better position to pass licensing costs on to consumers than Google, which would have to change its Android business model in order to be able to do so."
It is hard to say which approach is the right approach. Tech patents are often too vague and broad, and many probably should never have been granted in the first place. But, assuming Android does violate Microsoft patents, it seems reasonable to expect those profiting from the inclusion of those patents to pay some sort of licensing fees.
It just means that companies building on the Android OS need to consider the licensing fees a cost of doing business, and not just assume that because Android is open source that it can be used freely.