Indian antitrust ruling: "App developers are super dependent on Google" -- device makers choose "between signing a non-negotiable [contract] and commercial failure" -- consumers are "locked-in to [Android]"

On Thursday, the Competition Commission of India (CCI) announced an antitrust ruling against Google, and the following day, the full 293-page order was published. I've read it in full, and even though it's a long read (despite generous spacing), I recommend it to everyone with a professional interest in Google--particularly Android--antitrust issues.

Hierarchical summary of remedies

• device makers' (OEMs) rights:

  • (i) no more "package deal" for preinstallation of Google apps (such as search, Maps, YouTube, and GMail), but à la carte choice for OEMs and free arrangement on home screen

  • (ii) no more tying of other Google services and products to the must-have Google Play Store

  • (iii) no more denial of Android forks' access to Play Services APIs (Maps, Cloud Messaging, In-App Purchasing, Google+, and others) ("forks" means Android versions deviating from Google's specifications and requirements)

  • (iv) no more exclusivity agreements (with or without incentives) between Google and OEMs favoring its search service

  • (v) no more anti-fragmentation obligations preventing OEMs from (additionally) making devices that run Android forks

  • (vi) no incentives or obligations preventing OEMs from (additionally) making devices that run Android forks

• Android users' rights:

  • (vii) no restrictions on deinstallation of preinstalled apps

  • (viii) users must get to choose their default search engine on all entry points starting with the initial setup of a device, and those default settings must be modifiable later, requiring as few user interface actions as possible

• app developers' rights:

  • (ix) the Google Play Store must carry the storefront apps of third-party app stores

  • (x) no restrictions on app developers' ability to distribute apps through sideloading (the CCI is aware of the fact that Google allows it in principle, but also knows that users are at this point simply discouraged from installing sideloaded apps)

In other words, if Google ultimately had to comply with the order, its Android business model--which has always been primarily about monopoly maintenance and the exploitation of the Android app distribution monopoly--would no longer work. As Google told the CCI, "Google would need to charge a license fee for Android and/or GMS [Google Mobile Services] apps in India as it does in Europe." So the cost of Google-licensed Android devices in India might increase, but there would be--which would ultimately bring down prices and/or spur innovation--much more competition (at least in India) in

• (licensable) smartphone OSs (device makers could make Android-compliant and Google-licensed devices on the one hand and different (though not necessarily different on the hardware side) devices running "forks" on the other hand),

• general web search services,

• video hosting platforms (see my commentary further below on that market definition), and

• Android app distribution (alternative app stores and sideloading would represent viable alternatives to the Google Play Store).

Five relevant markets (each of them geographically limited to India)

• (a) licensable operating systems (OSs) for smart mobile devices (smartphones, tablets)

  Google offering: Android

• (b) app stores for Android

  Google offering: Google Play Store

• (c) general web search services

  Google offering: Google search engine, related services

• (d) non-OS-specific web browsers

  Google offering: Chrome

• (e) online video hosting platforms (OVHP)

  Google offering: YouTube

I concur with market definitions a (licensable OSs for smartphones and tablets) and b (Android app distribution), and those parts are consistent with the European Commission's and Epic Games' approach, which I've previously declared myself in agreement with. There can be no doubt about market c (general web search services).

I can see why the CCI believes its market d (non-OS-specific web browsers) makes most sense in this particular India-specific case, where Safari is irrelevant because hardly anyone buys Apple devices there and Chrome faces competition from a cross-platform browser made by Alibaba and named UC Browser, but I wouldn't necessarily endorse that definition in other geographic markets.

Where I have my doubts even with a view to India is market e (online video hosting platforms), an arguably gerrymandered definition under which YouTube's only significant challenger would be Vimeo and which may take the TikTok phenomenon into account to an insufficient degree. TikTok has features of a social network and of a video hosting platform (as opposed to a platform that doesn't offer user-generated content), and there may be some indications by now that TikTok's popularity comes at the expense not only of some other social networks but also YouTube. Also, TikTok keeps evolving and widening its impact zone. In India, it was banned two years ago along with dozens of other Chinese apps, though many users still sideload it and others use alternative services. But the YouTube-specific part of the CCI's decision is the one I'm less interested in (and which other regulators than the CCI don't seem to consider a priority either).

Comparison to other jurisdictions' approaches

This is the most comprehensive Google Android antitrust case I've seen so far. In other jurisdictions, this would be enough for two or three cases, if not more.

There are definitely synergy effects. The CCI decision has to explain certain dynamics only once, and can then build on that foundation.

I'm not suggesting that one approach is better than the other. What the CCI has put together is impressive in terms of breadth, depth, cogency, and clarity. The people who work on that case did a great job. But they were standing on the shoulders of giants as the CCI order references what some call "the Cicilline report"--the Majority Staff Report and Recommendations of the Antitrust Subcommittee of the U.S. House of Representatives (PDF). And while it isn't officially referenced, I assume that the CCI officials working on their Google case were well aware of the European Commission's Google Android decision, which the EU General Court largely affirmed last month.

It's possible that antitrust watchdogs in other jurisdictions opted for a piecemeal approach (instead of a sweeping ruling) to err on the side of caution. Also, DG COMP and others may feel they need to underpin their findings with even more detail in order for their decisions to withstand judicial review.

Country-specific factors

When comparing the comprehensive Indian Android case to parallel cases in other jurisdictions, it's important to understand some key characteristics of the Indian market:

• Android has a market share of about 97%.

• Apple is vanishingly small in India. It's a price-sensitive market and, as the CCI decision notes, Apple's products are simply too expensive for most customers there. In fact, if Apple's worldwide market share was like the one in India, app developers would deprioritize iOS and Apple would struggle even to survive in a niche.

• Google's search engine also has a market share around 97% in India. So the CCI had to look at one monopoly reinforcing the other.

• Many of the devices sold in India are also made in India by local companies like Micromax and Karbonn.

"Best Of" Collection

There's a lot that I like about the CCI ruling. It reflects a profound understanding of the interplay of the different elements of Google's strategy, arguing that "the impact of Google’s practices [...] cannot be seen in isolation, but cumulatively through web of restrictions pursuant to multiple agreements."

In no uncertain terms does the decision express the agency's disagreement with some weak arguments and transparent pretextual justifications. Let me show you some real gems:

• "The so-called choice for OEMs that Google refers to is between signing a non-negotiable MADA [Mobile Application Distribution Agreement] and commercial failure."

• "[F]ragmentation can be a source of competition and innovative products, as confirmed by the fact that Google itself created Android by breaking compatibility with Sun Microsystem's Java."

• "Google utilizes these so-called ‘security measures’ to create a barrier around its basket of apps which lets them flourish at the cost of competitors." (quoting from an app developer's submission)

• "Surveys can be indicative or misleading on occasions, data cannot."

• "App developers are super dependent on Google for distribution and reach of their Apps."

Chart: three-sided Android ecosystem

On page 42 of the CCI decision you can find the following chart that explains the three sides of the Android ecosystem (click on the image to enlarge):

For a recent post on Epic Games' aftermarket arguments in the Apple case I drew up a similar chart (click on the image to enlarge):

Obviously, the CCI didn't "steal" anything from me, nor the other way round. Those charts are two independent creations.

Observations on responses from third parties

Amazon explained to the CCI how its own Android fork named Fire OS couldn't compete. Given how powerful and sophisticated Amazon is, that fact bears significant weight.

Microsoft shared its experience with how it is now practically impossible even for them to compete with iOS and Android in the smartphone OS market due to the "app gap." Microsoft also discussed the challenges facing its Bing search service.

Some Indian app developers explained their problems very well. Those are real app developers, not the fake developer lobbying fronts that Apple (ACT | The App Association) and Google (Application Developers Alliance) use.

Android OEMs mostly tried to keep clear of coming across as de facto complainants. Some provided minimalistic answers while others explained their problems in ways that were distinguishable from a complaint, but have helped the CCI understand the issues.

Revenue-sharing agreements

In Western jurisdictions it has recently been difficult for antitrust enforcers to make cases against revenue-sharing and other types of exclusivity agreements. The CCI, however, is undeterred by that fact. The following sentence is food for thought also in other jurisdictions:

"In digital markets strong network effects makes the application of as efficient competitor test difficult."

The CCI explains quite convincingly that "OEMs would not have any incentive to pre-install competing search services" because "in one instance, the competing search service has to offer 90% revenue share to the OEM to secure a default position on the secondary browser, as against 10% offered by Google (generally). This is un-sustainable for the competitors."

I don't want to take a firm position on the applicability of the as efficient competitor test to digital markets here. But if the numbers in that example given by the CCI are right and a competing search engine would have to offer a 90% revenue share in order to compete with a Google offer of a 10% revenue share (because Google's search engine is also a much stronger economic engine), it's obvious that under the traditional AEC test Google could maintain its monopoly for all perpetuity by doing deals with all the major access points.

Google's huge payments to Apple are mentioned by the CCI as evidence of how much value Google derives from being the default search engine, but given Apple's tiny market share in India (compared to which its investments in manufacturing in that country are really huge), I can see why the focus is now more on what Google does alone than what it does in collusion with Apple.

Differentiated perspective on fragmentation

When I saw the CCI press release, I was worried that the negative take on anti-fragmentation rules went too far. The actual decision is nuanced and differentiated. Some anti-fragmentation rules are acceptable, but fragmentation must not serve as a pretext for monopolization.

As a small app developer I just wish to note that for the most part, we have the same interests as OEMs in loosening Google's death grip on the ecosystem, but I would hope that regulators and courts would also take into consideration that the little guys will struggle with a degree of fragmentation that may still be profitable for a major device maker and the very largest app makers.

Incomplete understanding of switching costs

There is really just one sentence in the CCI decision that in my eyes doesn't reflect as favorably on the CCI's understanding of the issus as the rest:

"Thereafter, the end consumer is locked-in to the OS and faces substantial switching costs, primarily in terms of cost of new smart device."

Switching costs are a big issue in all those mobile platform cases, such as the EU Commission's Google Android case and Epic Games' lawsuits against Apple and Google. The CCI is right about lock-in and substantial switching costs, but it's not a good idea to focus too much on just the cost of a new phone or tablet. Users are locked into those operating systems, not so much into devices. Devices are replaced from time to time; many people's upgrade cycle is two years (which is when mobile carriers typically offer a discount on a new phone if one renewes for another 24 months). It's about apps (for lack of a multi-platform app store like the ones that Epic Games and Microsoft--as know from a recent filing with the UK's Competition & Markets Authority-- would like to operate on mobile devices) and media content. It's also about familiarity with user interfaces. It's about having to re-enter lots of passwords. I migrated from Android to iOS and back, so I know that purchasing a device is really just a limited part of the picture.

In another context the CCI order at least recognizes the part about having to repurchase apps:

"[T]he users of smart mobile devices in India face considerable switching cost to shift to iOS between Android and iOS (and the need to download and purchase existing apps for the new smart mobile OS)."

Given that Apple's products aren't much of an option for most customers in India, it's understandable that the CCI didn't have to go into a lot more detail concerning switching costs. That's different in other jurisdictions. Let there be no doubt that the CCI order is a great piece of work. Someone will always find something to disagree with or identify room for improvement. That changes nothing about what a world-class job those CCI officials did. I hope they can defend at least the most important parts of the ruling in the further process.

Share|

Anti-innovative effects of Apple's Orwellian prohibition of alternative browser engines finally being discussed and investigated

Today I wish to draw some additional attention to long-time web browser developer Alex Russell's new post, Apple Is Not Defending Browser Engine Choice. On other recent occasions I've mentioned the UK Competition & Market Authority's market investigation into mobile browsers and cloud gaming. The fact that Apple allows only one browser engine on iOS--even Chrome for iOS is not really Chrome, but merely Safari in disguise, as it must be based on Apple's WebKit engine--is a serious problem, especially because Apple argues in the App Store context that developers should simply make web apps, while doing everything to ensure that those web apps won't be a practical alternative to native apps. It's like Apple--the tyrant--telling developers: "heads I win, tails you lose."

The argument with which Apple apologists seek to defend the Webkit engine monopoly is that Chrome and other browsers based on the Chromium engine would otherwise take over and turn the web into a browser monoculture. Apple would have plenty of resources--and resource allocation is at the heart of Alex Russell's concerns--to compete on the merits. It's just more profitable and more comfortable to abuse a typical aftermarket monopoly.

The suggestion that a browser monoculture on iOS is needed to prevent a browser monoculture on the Internet as a whole is a "fight fire with fire" argument. Apple is the gatekeeper standing between the technology industry at large and one billion users--by some describes as the world's richest billion people, which is not completely off base, though fortunately even some rich people prefer Android.

Far be it from me to deny that the concentration of power in Google's hands with its search engine, ad network, Android, and Chrome raises concerns. However, apart from Android, where Google leverages the Power of Default, Chrome actually managed to compete on the merits. OK, some antitrust enforcement accelerated its adoption--but that's precisely what is needed against Apple's single-browser-engine policy now.

The 2020 United States et al. v. Google antitrust complaint mentions Chrome, but only in contexts where Google leverages its power over Chrome to maintain its search engine monopoly. Only on Android does Google leverage its market power in another field to strengthen Chrome.

If you let Apple and Google compete on the merits, such as on Windows where neither Apple nor Google benefits from the Power of Default or simply disallows competition, Google will win. Safari never made it big on Windows, while Chrome did.

Alex Russell is right that "Apple has foundationally imperilled the web ecosystem by destroying the utility of a diverse population of browsers and engines." And CNET's Stephen Shankland interestingly noted that web developers are asking lots of questions about where Apple stands on new web standards, i.e., whether and how WebKit will implement them:

One data point related to @slightlylate's (newest) post complaining Apple is hurting the web: I follow browser mailing lists, and a large fraction of the Webkit messages are browser devs requesting Apple's stance on dozens of new web standards. https://t.co/e3SJJoaZHR pic.twitter.com/uyrDBPcVF8

— Stephen Shankland (@stshank) June 27, 2022

In closing, just like Alex Russell, let me, too, amplify Stuart Langridge's call to "help the [UK] CMA help the Web" by providing input to the CMA (deadline: July 22).

Follow @FOSSpatents

Share with other professionals via LinkedIn:

Share|

Oracle files proposed notice of deposition of Google witnesses regarding discovery misconduct

On August 25, Oracle and Google filed sworn statements (and Oracle also filed an objection) regarding Oracle's motion for an Android-Java copyright re-retrial over alleged discovery misconduct and lies to the jury. Judge Alsup then ordered the parties to respond to each other's filings with new sworn declarations, which were due today.

To be of service to loyal readers following the case in detail, I have uploaded Google's declaration as well as Oracle's filing (a declaration as well as a proposed notice of deposition of Google witnesses) to Scribd.

Unfortunately, I don't have time, at least at the moment, to analyze these documents in detail and share any observations. However, I don't want this to be misunderstood as my positions on the issues in this case or my belief as to the most likely outcome having changed. So I'd like to explain, just quickly:

Due to my focus on two app development projects, my blogging has slowed down massively in recent years. For example, this is only my 36th post this year (with more than two thirds of the year already behind us), while I wrote a minimum of 40 posts in any given month of the year 2012. Some slowdown would obviously have resulted from the fact that many smartphone disputes have been settled, but not to this extent.

I'm working very hard right now to launch both games (one on iOS first, the other one on Android and iOS simultaneously) before Thanksgiving weekend. Both games are almost feature-complete, with a lot of the current efforts already relating to final touchup and testing. Both have taken much longer to develop than initially planned, but they've also become even better than I would have predicted at the outset--and those were ambitious projects from the beginning.

I have to focus as there still is some hard work on my part to be done, though I have recently stopped doing any coding myself. Now, after six years of "smartphone IP wars," there are only two really big cases pending: this copyright case here and the Apple v. Samsung design patent matter. As a right holder who has already invested a huge amount of money as well as "sweat equity" in software development, I care very much about Oracle v. Google, which is no longer really about APIs as much as it is about software copyright in general. As a potential future defendant against trolls, I'm deeply concerned about the prospect of an unapportioned disgorgement of profits over a design patent on a single icon or whatever other design.

The Supreme Court will hear Samsung's appeal in a month (one month and two days, to be precise). This is obviously not the time to reduce or discontinue my coverage of that matter. It will be over soon. I guess the decision will even come down before Christmas, or in January maybe.

By contrast, Oracle v. Google will take much longer. I honestly can't predict how much time I'll find to comment on it. It could be that I'll somehow manage to find the time to blog about it like in the past, especially because I disagree with 99% of everything else I read about that case, but it could also be that my next post on this case after this one will be my commentary on the final outcome after a settlement or after all appeals have been exhausted. Or anything in between those extremes. Whatever it may be, it has nothing to do with how important this matter is to software developers like me or with what I believe the legally and factually correct outcome should be.

If you'd like to be updated on the smartphone patent disputes and other intellectual property matters I cover, please subscribe to my RSS feed (in the right-hand column) and/or follow me on Twitter @FOSSpatents and Google+.

Follow @FOSSpatents

Share with other professionals via LinkedIn:

Share|

Oracle pushing hard for Android-Java re-retrial while Google fails to justify its lies to the jury

In litigation, the devil is often in the detail, but not always. Sometimes there are overarching issues that decide a dispute and the legal detail is simply worked out in order to reach the only result that any remotely reasonable person could consider correct. The situation surrounding Oracle's push for a re-retrial is clear: Google's expert witnesses told the opposite of the truth to Judge Alsup and the jury. In Judge Alsup's case, there is evidence that the lies were outcome-determinative because he denied Oracle's first motion for judgment as a matter of law JMOL) on that basis. And with respect to the jury, there can be no reasonable doubt that its deliberations--the details of which are not known--would have been very, very, very different if Google had been unable to base its "transformative use" and "no market harm" arguments on the claim that "Java SE runs on desktops, Android is on smartphones" (because Oracle could have pointed to the Marshmallow-Chrome project as conclusive evidence that it was a lie).

Before the re-retrial is ordered (and I'm sure it will happen, be it by order of Judge Alsup or be it the outcome of an appeal that will, if it has to be filed, be a slam dunk), some procedural details concerning what went wrong in the discovery process may have to be discussed. But at the end of the day, it doesn't really matter what Google told its lawyers. All that matters is what absolute untruths Google's expert witnesses, directed by Google's lawyers, told the judge and, especially, the jury.

Google is trying to hide behind Judge Alsup's pretrial orders that limited the scope. It can run, but it can't successfully hide. Those orders were bad and unfair in their own right. So even if Judge Alsup tried to let Google get away with it, what would happen then? The whole thing would be presented to the appeals court (which is the opposite of hostil to intellectual property right holders). After the first page and a half of an Oracle opening brief, it would already be clear that this here is not just a case about software theft but also about a stolen trial.

Judge Alsup can only make things worse for himself by adopting Google's excuses the way he once adopted Google's misinterpretation of the Sega and Sony Ninth Circuit cases. Everyone knows how that one ended.

The appeals court would simply not let a judgment stand that is based on lies of the worst kind. The expert witnesses communicated those lies to the jury, but they presumably hadn't been briefed and instructed correctly. But the bottom line was that Google, as a party, lied to the jury. Even if Judge Alsup found Google's conduct excusable, the judges above him almost certainly wouldn't.

So instead of going into detail here on how certain discovery responses allegedly came into being and why certain things were said or not said or asked or not asked, I'll just highlight three things now and then I'll show you all three documents filed today (written declarations by attorneys for both parties, and an Oracle response and objection to last week's follow-up order to the motion hearing).

1. I wrote above that the platform-related lies were outcome-determinative with respect to the denial of Oracle's first JMOL motion. Here's a sentence from that order:

   "With respect to Factor Four, our jury could reasonably have found that use of the declaring lines of code (including their [structure, sequence and organization]) in Android caused no harm to the market for the copyrighted works, which were for desktop and laptop computers."

2. In my previous post I wrote I had also interpreted the Ninth Circuit's Jones v. Aero/chem decision (which remanded a case with certain similarities to a district court so a hearing would be held) the way Judge Alsup outlined in last week's order. But Oracle's declaration now explains that a "hearing on the motion" was actually held in the Jones proceedings, but, Oracle's lawyers explain, "[w]hat the district court had not done was hold its contemplated hearing where evidence could be presented in order to determine whether there was discovery misconduct."

3. Google's arguments as they try to now say that the unified Android-Chrome platform is not a "full" version of Marshmallow are ridiculous. Two particularly crazy examples: they argue that "the Google Play Store is not part of (the Marshmallow version of) Android, but is rather a separate application that is available for Android," even though everybody knows that Google contractually requires Android licensees (unless they use Android on open source terms without the right to show the green robot logo etc.) to ship the Play Store (and other proprietary Google apps) with Android. And they write that "the runtime for (the Marshmallow version of) Android that can be run inside of Chrome OS does not include the Linux Kernel at the bottom of the Android stack," even though everybody with a modicum of technical knowledge knows that the Linux kernel has its own APIs that are simply not relevant to a case about the Java APIs.

   I will continue to admire Google regardless, but this is really very bad.

So now, finally, the three documents. I'll start with Google's declaration because Google is the party that really has some 'splaining to do here, followed by Oracle's response and objection (Oracle pushes hard for a re-retrial and argues that the declaration the court requested from a Google attorney is not sufficient but much more is needed to bring the relevant facts to light) and then, finally, a declaration by an attorney for Oracle.

16-08-25 Google Attorney Declaration by Florian Mueller on Scribd

16-08-25 Oracle Response and Objection by Florian Mueller on Scribd

16-08-25 Oracle Attorney Declaration by Florian Mueller on Scribd

If you'd like to be updated on the smartphone patent disputes and other intellectual property matters I cover, please subscribe to my RSS feed (in the right-hand column) and/or follow me on Twitter @FOSSpatents and Google+.

Follow @FOSSpatents

Share with other professionals via LinkedIn:

Share|

Don't blame Ars Technica for the inevitability of an Oracle v. Google Android-Java copyright re-retrial

It ain't over till it's over, and Oracle v. Google is very far from over.

At a Wednesday hearing, Judge Alsup told Google that it should have disclosed its Marshmallow Chrome project. As a follow-up to the hearing, he issued an order on Thursday, which I'll quote from and comment on below:

"By THURSDAY AUGUST 25, AT NOON, Christa Anderson, counsel for Google, shall submit a sworn statement explaining why the discovery responses referenced in Court yesterday were not updated, including the full extent to which counsel knew Google's intention to launch a full version of Marshmallow, including the Google Play Store, for Chrome OS."

This could be one last chance for Google to justify the unjustifiable and, which is what I guess is going to happen, for Google's lawyers to avoid consequences for themselves. Oracle's counsel claimed at the hearin g that "they" were "LYING" to the jury. At least that was the net effect of what happened. In a fairly recent post I quoted those lies.

But who is "they" in "they were LYING?"

The expert witnesses were instructed by Google's trial counsel. It's highly unlikely--if not simply implausible--that the expert witnesses were aware of the secretive Marshmallow Chrome project whne testifying.

The net effect of this was that the jury was being lied to. The requested declaration may shed some light on how this happened and on who has to accept responsibility. But Google and its lawyers are less interested in bringing the truth to light. What they'll try to do is to reinforce the points they made at the hearing about why they thought Marshmallow Chrome was outside the scope of the trial though the Marshmallow version of Android undoubtedly was at issue.

I'll comment on that declaration once it is filed. I presume it will be made public, at least large parts of it. For now I doubt that it will change anything with respect to the likelihood of a re-retrial. And the primary reason I doubt it is that Judge Alsup would be headed for another overruling, far worse than last time, if he denied Oracle's motion for a new trial even though the appeals court will then see very clearly that

• Google's expert witnesses told the opposite of the truth about the single most important issue in the case (given that Marshmallow Chrome affects the "transformative use" analysis as well as the assessment of market harm) and

• Google itself made it clear, and reporters and industry watchers clearly understood, that the integration of Marshmallow into Chrome is totally unrelated to the App Runtime for Chrome (ARC). I'll talk about the Ars Technica article and its implications further below.

In the event of an appeal, the appeals court will also get to see a list of other problems (I'm sure there would be an appeal on multiple grounds, which is also what Oracle announced after the spring retrial) and a consistent pattern of Oracle being disadvantaged by the judge. At the hearing he again sought to justify some of his decisions to limit Oracle's ability to present the full story to the jury with case management arguments. I've been watching this case for more than six years now and while Judge Alsup has put case management above the truth on various occasions, he has not even been perfectly consistent (for example, he didn't care in 2012 about wasting jury time instead of firstly ruling on copyrightability but then bifurcated merits and damages on remand) except that his case management decisions have always helped Google and harmed Oracle. That kind of consistency would also be easy for the appeals court to see, and let's not forget that the Federal Circuit is generally quite sympathetic to intellectual property right holders trying to enforce their rights against infringers.

"By the same date and time, Annette Hurst, counsel for Oracle, shall submit a sworn statement setting forth, after full inquiry, the full extent to which Oracle neglected to update its discovery responses by reason, in whole or in part, of one or more rulings by the judge."

The word "neglected" in the above passage is a bit strange. All dictionary definitions of the word show that it has a very negative connotation in terms of a failure to do something a careful person should have done. A non-judgmental term would have been "decided not [to update]" or something like that. He certainly was non-judgmental in the paragraph quoted further above concerning Google's statement, though in Google's case it's now clear that something was not disclosed that should have been disclosed, while in Oracle's case it's, at best, hypothetical (it's possible that no such thing exists at all but, above all, there doesn't appear to be the slightest indication of any wrongdoing). But I've seen far worse things in connection with this case. Maybe I'm just being hypersensitive after all that has already gone awry. (Again, I'll try my best to look at the proceedings relating to a re-retrial, unless Judge Alsup denies it and the appeals court orders it (in which case it would be absolutely impossible to have too much faith in his fairness), as if nothing had gone wrong before.)

Can this part help Google? I doubt this, too. At most Oracle's response might bring up stuff that would have to be discussed at a re-retrial. But the question of whether a re-retrial is necessary has everything to do with Google's conduct and nothing with Oracle's conduct.

"The same statement shall explain why counsel repeatedly represented that the Jones v. Aero/chem decision required an 'evidentiary hearing' when that decision, as it turns out, made no mention of an 'evidentiary hearing' and instead remanded because no 'hearing' or other consideration at all had been given to the issue of discovery conduct by the district judge."

Despite my other concerns and reservations, I took a quick look at that decision and I understand that decision and the circumstances leading to it just the way Judge Alsup also describes that precedent. What I don't know is what exactly Oracle's counsel said about that case at the hearing. So let's see what Oracle files.

This, again, is nothing that can have any bearing on the pressing need for a re-retrial.

"By the same date, counsel shall meet and confer and advise the Court whether the form of judgment should be amended to reflect that it is not a final judgment but a Rule 52(c) judgment on partial findings, given that Oracle is entitled to challenge further uses of Android herein."

This paragraph here is hard to interpret because everything depends on what will happen with respect to Google's decision to keep the Marshmallow Chrome project secret from Oracle's lawyers. What's certain, however, is that it reflects the fact this dispute could get substantially broader soon.

I don't have the slightest idea of how Oracle and Google's lawyers will address this one. In my opinion, it was a final judgment that must be set aside because Marshmallow was part of the case and the jury was being lied to. However, if the case continues, it might indeed make sense to present everything to the jury including other devices than just smartphones. That is more of a question of admissible evidence to me than anything else.

Ars Technica

In my previous post I already linked to and quoted from the Ars Technica article Google's counsel presented at the Wednesday motion hearing.

Oracle's counsel called Ars Technica "the premier publication in this industry." That's hyperbole, and I attribute it to two factors. One, she obviously wanted to give that article maximum weight at the motion hearing. Two, she had written an op-ed for Ars Technica after the spring retrial.

Ars is certainly influential and widely read. And one could probably define a set of criteria based on which it would be number one. But it's not number one in this industry by all measures and standards. Also, its coverage of Oracle v. Google is neither enlightening nor fair.

Interestingly, when the author of that Ars Technica article heard about how Oracle tried to use it at the trial, he immediately felt compelled to portray another story, but for lack of knowledge about what was really at issue in the motion hearing, he actually just confirmed again why his article helps Oracle:

For the record @Oracle, I called Android on Chrome OS "a shocker" because the underpinnings weren't what I expected. https://t.co/OH5zVe6RNW

— Ron Amadeo (@RonAmadeo) August 17, 2016

Google spent like three years building ARC, the "App Runtime for Chrome" then threw it out for a container solution. That was shocking.

— Ron Amadeo (@RonAmadeo) August 17, 2016

It is all about the underpinnings. It's about the inner workings.

That's because the App Runtime for Chrome (ARC), which according to Google could not even have passed its Android compatibility test, really was separate from Android, while the Marshmallow Chrome project serves as a great unifier.

What shocked Oracle's lawyers? Not the fact that Google would in some way, shape or form make Android apps run on Chrome. That was old news. The shocker was that Google would actually incorporate the Android Marshmallow APIs into Chrome: APIs that contain APIs Google should have licensed from Oracle a long time ago.

Many people out there have been misled. If all software developers truly understood what this case is about and what it is not (for example, the retrial was not about whether APIs are protected but just about whether Google's trial counsel could manipulate a jury by presenting witnesses who made it sound like everything related to Java, especially the APIs, was for the taking), Ars Technica's Ron Amadeo wouldn't have had to try to put his article into perspective. I'll talk about implications for developers again on some other occasion. The timing of that will very much depend on procedures. I, for my part, would be shocked if the request for a re-retrial was denied.

If you'd like to be updated on the smartphone patent disputes and other intellectual property matters I cover, please subscribe to my RSS feed (in the right-hand column) and/or follow me on Twitter @FOSSpatents and Google+.

Follow @FOSSpatents

Share with other professionals via LinkedIn:

Share|

Judge may order a new Oracle v. Google retrial over evidence unwisely withheld by Google

Thanks to Twitter coverage by Mike Swift (MLex), Sarah Jeong (Motherboard, EFF) and Ross Todd (The Recorder), I just had the opportunity to "follow" the Oracle v. Google post-trial motion hearing in the Northern District of California. Since I already shared my observations, opinions and predictions last week, I can keep this post here brief:

• As expected, Judge Alsup is not going to agree with Oracle on JMOL. He continues to believe that the jury had a reasonable basis for reaching its verdict based on the evidence and testimony it saw/heard.

• I'm pleased to see that Judge Alsup, Google and Oracle all affirmatively agreed with me today that Oracle could, as a last resort, bring a new copyright infringement lawsuit to raise issues that were kept out of this year's retrial. Such consensus is unusual. Google tried to somehow nuance its concession by saying "collateral estoppel issues aside," but it's unclear how that would work--not just to me but, more importantly, also to Judge Alsup.

• Based on the quotes I read on Twitter, I initially felt that Judge Alsup was not quite inclined to order a new trial. But Oracle's counsel, Orrick's Annette Hurst, didn't give up. She pointed to how Google's lawyers had "lied" to the jury and committed "fraud" by centering a transformative-use argument around differences between personal computers and smartphones. She also dealt a blow to Google's argument that the integration of the Marshmallow APIs into Chrome OS was essentially just the same as the Android App Runtime for Chrome (ARC), and in this context she read parts of this Ars Technica article aloud. Here's an unbelievably powerful passage that makes Google's ARC-based excuse downright ridiculous:

  "The real shocker here is that this release of Google Play on Chrome OS is not based on ARC. Zelidrag Hornung, the engineering director of Chrome & Android, filled us in on the details: "We have redone this completely differently. There are no connecting points between the two projects (ARC and today's announcement) from an implementation perspective."

Judge Alsup told Google that at the time it decided not to disclose its Marshmallow Chrome project, "this was possibly an important point." And while he made it clear that he wasn't yet at the point of expressing his position on the new trial motion, a re-retrial definitely is a possibility, especially since he also told Google's counsel: "If I had been in your position, I would have disclosed it."

It's also important to consider that Marshmallow was part of the retrial and the jury verdict was not about particular devices but about Android versions up to and including Marshmallow. I noted on Twitter that this is a key difference between Oracle v. Google and the various Apple v. Samsung trials, where juries made device-specific determinations on the merits and on damages.

All in all, the things I read on Twitter suggest that Judge Alsup was a whole lot more evenhanded today than at any point during the retrial and its preparations. I do believe that this "fair use" issue should never have been put before a jury in the first place, but if a new trial is ordered and the Marshmallow-related evidence becomes part of the case, even Judge Alsup's JMOL analysis (under those new circumstances) may be a different one than so far. What I consider less important is that he appears to consider a Google motion for fees "greedy" and said he might just deny it if the parties couldn't reach an agreement on this one. A motion about a few million dollars of expenses is just a sideshow in the context of a multi-billion dollar case. But the Marshmallow Chrome issue is absolutely pivotal, and in case Judge Alsup orders a re-retrial, it will be a whole new ball game and in that case I'll form my opinion on each and every decision before, during and after the re-retrial as if the things that went wrong last time had never happened in the first place. Yes, the spring 2016 retrial may soon be water under the bridge, and a correct outcome may be possible even prior to an appeal.

In retrospect it's really hard to understand what Google did here. And even harder to justify.

If you'd like to be updated on the smartphone patent disputes and other intellectual property matters I cover, please subscribe to my RSS feed (in the right-hand column) and/or follow me on Twitter @FOSSpatents and Google+.

Follow @FOSSpatents

Share with other professionals via LinkedIn:

Share|

Google's integration of Android into Chrome makes a third Android-Java copyright trial 100% inevitable

About a month ago, Oracle renewed its motion for judgment as a matter of law against Google and brought a Rule 59 motion for a new trial. While such post-trial motions are common and expected in high-stakes IP cases, there's much more to it here.

Unless the parties settle, it's not just likely or very likely, but absolutely certain, that there will be (at least) a third Oracle v. Google Android-Java copyright trial.

Trust me: there will be one. The only question is whether it will result from

• a potential decision by Judge Alsup that Google is guilty of serious discovery misconduct,

• the appeals court overruling the trial judge again, or

• a new lawsuit that Oracle would have to bring according to Google's position.

The first of these possibilities is much more likely than I initially thought. Judge Alsup will hold a post-trial motion hearing next week. It's a safe guess that he won't agree with Oracle on JMOL. It's also a safe guess that he'll disagree with various Rule 59 arguments that are based on his own pre-trial decisions. He's afraid of Oracle's appeal (this much is sure based on the way he denied JMOL a couple of months ago) but he's not going to say that he messed up. It's hard to think of any judge who would do that but even harder to think of a judge less likely to do it than him. But Google's misconduct actually provides him with a nice exit strategy. He can avoid the potentially huge embarrassment of being overruled twice in the same case by judges who are more powerful and more IP-savvy than him, and put the blame on Google.

I have no idea whether he will do that, but it would be a very appropriate and rational thing to do. And it would be convenient, too, because he could correct some of his pre-trial errors very elegantly without having to backtrack: it would simply be a whole new ball game, especially with respect to the admissibility of evidence relating to Android's non-mobile target markets. Even the question of whether a bifurcated trial prejudiced Oracle (in my opinion, it did, even massively) could be avoided and the third trial could, for whatever case management reason, be a single trial. Furthermore, evidence that Oracle wasn't allowed to use last time to counter some utterly dishonest statements by Google's lawyers could also be admitted in the event Google were to make certain statements again at the third trial.

Judge Alsup can either seize this splendid opportunity to correct some of his mistakes or he can make another huge mistake by letting Google's lawyers get away with what they've done, which is so bad that Oracle would be very likely to get a new trial on appeal (if it doesn't succeed on JMOL anyway, which it might and in my view should, but for the appeals court it would probably also be easier to just look at the integration of Android into Chrome and simply remand for a new trial).

For the huge, game-changing implications of Google's integration of Android Marshmallow into Chrome (i.e., Android is competing with Java SE on desktop and laptop computers, not just in mobile markets), may I refer you to my post on Oracle's Rule 59 motion. Simply put, the whole "fair use" analysis changes, especially with respect to market harm and "transformative" use.

In its July 20 opposition filing, Google essentially argued that it had no obligation to make any disclosures regarding the Marshmallow/Chrome project because it had provided information regarding the Google App Runtime for Chrome (ARC). Google basically said that the integration of Marshmallow into Chrome was just an evolution of ARC ("update"), which Oracle knew about and which was "outside the scope of the retrial." A week later, however, Oracle's lawyers filed a very powerful reply brief that exposes Google's ARC-related arguments as extremely flimsy (this post continues below the document):

16-07-27 Oracle Reply in Support of Motion for New Trial by Florian Mueller on Scribd

The first thing to consider here is that Marshmallow was part of the trial (in a February 16 follow-up trial order, Judge Alsup wrote that "Marshmallow shall be added to the named versions of Android to be in play at the trial") and there was no question about whether it contained the asserted material: Google conceded this much, and the jury was instructed accordingly ("it has already been established that [Marshmallow] used [...] the declaring code and [SSO: structure, sequence and organization] of 37 Java API packages"). That already makes it a very different situation from the one concerning ARC.

On the technical side, the most important difference is, as Oracle's reply brief points out, that ARC could not have passed Google's own Android compatibility test because lots of Android apps wouldn't work with it, and even those that do wouldn't run right away without modifications.

Oracle also notes that fact discovery closed before the orders on trial scope that Google claims put the Marshmallow/Chrome project outside the trial scope. But Google couldn't know at the time what the subsequent orders would be.

What I find disgusting is that Google's technical and economic experts told the jury things that make absolutely no sense in light of Marshmallow/Chrome:

• Google's only technical expert at trial, Dr. Astrachan, said that Android includes "libraries [that] are designed specifically for the mobile platform, which is a different platform from where the 37 [Java SE] API packages came from." He meant that desktop and laptop computers are a different type of platform. But that's exactly the Chrome market.

• Similarly, Google's economist Dr. Leonard said "the two products are on very different devices [...] Java SE is on personal computers. Android [...] is on smartphones." In his closing argument, Google's counsel said the same: "Android is not a substitute. Java SE is on personal computers; Android is on smartphones."

There cannot be the slightest doubt that the trial could have had a different result if Oracle had been able to counter those untruths with references to Marshmallow/Chrome.

I look forward to whatever the court reporters attending next week's motion hearing will observe. There's a good chance that Judge Alsup will be very angry with Google. If he is, then a retrial will loom large.

If not, Oracle has another silver bullet for its appeal.

But if everyone told Oracle that Marshmallow/Chrome was outside the scope of that trial, Oracle could and certainly (knowing that Oracle never quits in those kinds of disputes) would file a new complaint over newer Android versions. That would also lead to a third Oracle v. Google trial, though things would take a bit longer then.

If you'd like to be updated on the smartphone patent disputes and other intellectual property matters I cover, please subscribe to my RSS feed (in the right-hand column) and/or follow me on Twitter @FOSSpatents and Google+.

Follow @FOSSpatents

Share with other professionals via LinkedIn:

Share|

Samsung asks court to declare it can terminate its Android patent license agreement with Microsoft

A new filing was made on Thursday in the Southern District of New York in the contract dispute between Microsoft and Samsung over a 2011 Android/Chrome patent license agreement (redacted versions of the two contracts at issue, the patent license agreement on the one hand and a closely-related business collaboration agreement on the other hand, became publicly accessible last week). While seeking a stay pending arbitration, Samsung has (since the motion hasn't been adjudicated yet) timely filed its answer to Microsoft's amended complaint (published earlier this month, it revealed that Samsung paid more than a billion dollars in Android/Chrome patent royalties to Microsoft between mid-2012 and mid-2013) and its counterclaims.

Microsoft wants the court to hold that Microsoft's acquisition of Nokia's mobile devices business does not give Samsung the right to unilaterally terminate the patent license agreement (though the two agreements are undoubtedly interconnected). It also says that the case shouldn't be stayed since any termination, if allowed (which in Microsoft's opinion it's not), would affect only future royalty reports and not the royalties Microsoft says Samsung owes for the period between mid-2013 and mid-2014). Samsung's key counterclaim is now a request for a judicial "declaration that Samsung may terminate the [business collaboration agreement] and [patent license agreement] pursuant to BCA Sections 9.7 and 8.5." (emphasis added)

If Samsung obtained such a declaration (by the court in New York or by an arbitration panel), it would be in a position to renegotiate the terms of the patent license agreement. Since the signing of that contract more than three years ago, smartphone patent assertions by all of the major players have been largely unsuccessful (less than 10% had merit based on final or interim results):

Microsoft has, to put it diplomatically, not outperformed the others so far:

But for now, there is no indication of Samsung actually having provided notice of termination. It appears that Samsung prefers to negotiate with Microsoft from the position of having the option, but not the obligation, to terminate the existing contracts. There could be different reasons for that approach. To me, the most likely reason is that Samsung wants to avoid further escalation of the controversy not for fear of Microsoft's patent assertions (the results in court speak for themselves and some of Microsoft's relevant patents have expired) but because of an interest in continuing to build Windows-based devices.

That interest, however, is not heightened by the fact that Microsoft has become a mobile device maker through the acquisition of Nokia's handset business. For example, Samsung's filing says the following:

"After the Nokia DSB Merger, the agreements, now between competitors, invite charges of collusion. No reasonable business would knowingly undertake the risk of contractually obligating itself to coordinate and collaborate with a competitor—particularly, as here, with respect to setting third-party incentives and controlling the 'out of box' experience of a competitor's products."

Samsung's lawyers even raise antitrust concerns over this kind of horizontal cooperation:

"Additionally, the sharing of product roadmap information, which the BCA contemplates (Sections 2.1 and 2.2 of Exhibit B), now takes on a new and dangerous meaning when viewed through the lens of antitrust law: these provisions could give rise to accusations that two handset competitors, Microsoft and Samsung, are engaged in market allocations in terms of how and when products are developed and distributed to the market. This problem did not exist prior to Microsoft's merger with Nokia['s handset business]."

If you're interested in further detail, here's Samsung's filing:

14-10-30 Samsung Answer to Microsoft Contract Complaint by Florian Mueller

If you'd like to be updated on the smartphone patent disputes and other intellectual property matters I cover, please subscribe to my RSS feed (in the right-hand column) and/or follow me on Twitter @FOSSpatents and Google+.

Follow @FOSSpatents

Share with other professionals via LinkedIn:

Share|

Here's a redacted version of Microsoft's Android/Chrome patent license agreement with Samsung

The Microsoft-Samsung contract dispute in the Southern District of New York over the implications of Microsoft's acquisition of Nokia's wireless device business for the parties' 2011 Android/Chrome patent license agreement has already exceeded my expectations concerning transparency. Three weeks ago this case brought to light that Samsung forked over more than a billion dollars in patent royalties on its Android/Chrome devices to Microsoft in the 12-month period from July 2012 to June 2013. Last week, a Samsung motion to compel arbitration explained certain interdependencies between the parties' Android/Chrome patent license agreement and a second contract, a Windows- and Windows Phone-related business collaboration agreement.

Here comes the latest and greatest revelation, which in certain respects is of even greater interest than the billion-dollar figure: yesterday, Samsung's counsel in the New York case had to file a public redacted version of the declaration supporting Samsung's motion for referral to arbitration, including the key exhibits--the patent license agreement and the business collaboration agreement.

The following PDF document contains the declaration and the redacted versions of the two contracts (this post continues below the document):

Redacted version of Microsoft's 2011 contracts with Samsung.pdf by Florian Mueller

These contracts are interesting from different angles. One of them is Samsung's motion to compel arbitration. At first sight (and I will have to look at it more closely and think about it some more) it does appear that the two contracts, both of which were concluded within a couple of months of each other, are indeed closely connected. The business collaboration agreement was signed first but already referred to credits (based on Samsung's success with Windows devices) against Android/Chrome-related license fees. Technically they both have the same date: July 1, 2011.

The aspect I found most interesting is all about exclusions. While the license agreement is not limited to a particular list of patents, it's no total-portfolio license either. There are two key limitations: "Excluded Technologies" and "Excluded Software" (any software licensed under an "Excluded License").

As for excluded technologies, Microsoft did not license to Samsung any of its patents relating to

1. Kinect-style gesture-based functionality (this exclusion has nothing to do with touchscreen gesture control, as the contract clarifies),

2. Virtual Reality, and

3. "Information Worker Software": a software or a service "designed or offered as a replacement" of Microsoft's office applications, with OpenOffice and LibreOffice being specifically mentioned as replacements for one or more Office components.

The definition of "Excluded License" includes any version of the GPL, LGPL, Mozilla Public License, and Common Public License, or similar licenses with a copyleft (share-alike) feature. This exclusion, however, relates only to "Other Samsung Products" and not to Samsung's Android and Chrome devices, where the only excluded license is the GPLv3. In other words, the license agreement does cover the GPLv2 parts of Android, such as the GNU operating system and the Linux kernel. This might spark some debate in Free Software circles. It also reminds me of what I said four years ago when there was a debate raging in Europe over "open standards" and the compatibility of free and open source software with FRAND (fair, reasonable and non-discriminatory) licensing terms. I said that patent royalties are paid on free and open source software, including GPLv2 software such as Linux, all the time, also by such companies as Red Hat. The now-public terms of the Microsoft-Samsung patent license agreement are another example.

Besides the actual exclusions I mentioned, there's also a mechanism in the contract that can lead to the exclusion of a category of devices. There are special rules in the contract for a "Deferred Android Device," defined as "an Android/Chrome Device that (a) does not have voice communication as a primary functionality, (b) has web browsing as a primary functionality and (c) has a display screen no larger than 6.25 inches across its diagonal." For such devices, the contract requires the parties to take certain steps for the purpose of agreeing on a license fee on such a device, but if the parties couldn't agree on a fee, then such devices would just not be covered by the license agreement.

If you'd like to be updated on the smartphone patent disputes and other intellectual property matters I cover, please subscribe to my RSS feed (in the right-hand column) and/or follow me on Twitter @FOSSpatents and Google+.

Follow @FOSSpatents

Share with other professionals via LinkedIn:

Share|

Microsoft announces license agreement with Dell, its 23rd known Android patent deal (29 in total)

Earlier today I blogged about the Licensing Executives Society, which wants to "make the world better through [patent] licensing". Now I have three new Android-related patent license agreements to add to my list, and the most significant one of the three was just announced today: Microsoft and Dell signed a patent licensing agreement under which "they agreed on royalties for Dell’s products running the Android or Chrome platforms and on consideration to Dell for a license from Microsoft for Xbox gaming consoles".

On February 20, Microsoft also announced an Android- and Chrome-related patent license deal with Hop-on. I missed that announcement and found out about it (via Twitter) a week or two later. The announcement said that "Microsoft will receive royalties from Hop-on under the agreement".

Hop-on was Microsoft's 22nd known Android patent licensee, and Dell is now the 23rd.

And the third addition to the list of royalty-bearing Android patent license agreements is a settlement between Samsung and Vertical Computer Systems. On March 21, the parties filed the following information with the United States District Court for the Eastern District of Texas:

"Pursuant to Fed. R. Civ. P. 41(a)(1)(A)(ii) and 41(c), Plaintiff Vertical Computer Systems, Inc. ('Vertical') and Defendant s Samsung Electronics Co., Ltd. and Samsung Electronics America, Inc. (the 'Samsung Defendants') hereby stipulate to dismiss with prejudice: all claims by Vertical against the Samsung Defendants; and all counterclaims by the Samsung Defendants against Vertical. Each party shall bear its own costs of suit and attorneys' fees."

LG already settled the same litigation in October. Just like in the LG case, it's a safe assumption that Vertical received some kind of payment, though it's another question whether any presumed payment is significant relative to Samsung's huge volume of Android devices (it's probably not a big deal for Samsung, but I'm just guessing; I'm sure it benefits Vertical, and Vertical may now, after the settlements it obtained, be encouraged to go after other Android device makers).

Here's an updated list of all known deals:

1. April 27, 2010: Microsoft Announces Patent Agreement With HTC

2. June 27, 2011: Microsoft and General Dynamics Itronix Sign Patent Agreement ("Agreement will cover General Dynamics Itronix devices running the Android platform.") (FOSS Patents coverage)

3. June 29, 2011: Microsoft and Velocity Micro, Inc., Sign Patent Agreement Covering Android-Based Devices (FOSS Patents coverage)

4. June 30, 2011: Microsoft and Onkyo Corp. Sign Patent Agreement Covering Android-Based Tablets (FOSS Patents coverage)

5. July 5, 2011: Microsoft and Wistron Sign Patent Agreement ("Agreement will cover Wistron's Android tablets, smartphones and e-readers.") (FOSS Patents coverage)

6. September 8, 2011: Microsoft and Acer Sign Patent License Agreement ("Agreement will cover Acer's Android tablets and smartphones.") (FOSS Patents coverage)

7. September 8, 2011: Microsoft and ViewSonic Sign Patent Agreement ("Agreement will cover ViewSonic's Android Tablets and smartphones.") (FOSS Patents coverage)

8. September 28, 2011: Microsoft and Samsung Broaden Smartphone Partnership ("Under the terms of the agreement, Microsoft will receive royalties for Samsung's mobile phones and tablets running the Android mobile platform.") (FOSS Patents coverage)

9. October 23, 2011: Microsoft and Compal Electronics Sign Patent Agreement Covering Android and Chrome Based Devices

10. January 12, 2012: Microsoft and LG Sign Patent Agreement Covering Android and Chrome OS Based Devices (FOSS Patents coverage)

11. April 25, 2012: Microsoft and Pegatron Corp. Sign Patent Agreement Covering Android- and Chrome-Based Devices

12. April 30, 2012: Barnes & Noble and Microsoft Form Strategic Partnership to Advance World-Class Digital Reading Experiences for Consumers" ("Barnes & Noble and Microsoft have settled their patent litigation, and moving forward, Barnes & Noble and Newco will have a royalty-bearing license under Microsoft's patents for its NOOK eReader and Tablet products.") (FOSS Patents coverage)

13. July 9, 2012: Microsoft and Aluratek Inc. Sign Patent Agreement Covering Android and Chrome Based Devices

14. July 9, 2012: Microsoft and Coby Electronics Sign Patent Agreement Covering Android and Chrome Based Devices ("Although the contents of the agreement have not been disclosed, the parties indicate that Microsoft will receive royalties from Coby under the agreement.")

15. November 7, 2012: Microsoft Signs Licensing Agreements for exFAT With Sharp, Sigma, NextoDi, Black Magic and Atomos Global ("The agreements cover Sharp Android tablets, Sigma and NextoDi high-end cameras and accessories, and Black Magic and Atomos Global broadcast-quality video-recording devices.")

16. November 11, 2012: HTC and Apple Settle Patent Dispute (FOSS Patents coverage)

17. December 11, 2012: Microsoft and EINS Sign Android Patent Agreement ("EINS manufactures Android tablets under the Cat brand in Germany.") (FOSS Patents coverage)

18. December 11, 2012: Microsoft and Hoeft & Wessel AG Sign Patent Agreement ("Agreement will cover Hoeft & Wessel devices running the Android platform.") (FOSS Patents coverage)

19. February 21, 2013: Microsoft and Nikon Sign Android Patent Agreement ("Agreement covers certain Nikon cameras running the Android platform.") (FOSS Patents coverage)

20. April 16 (U.S.)/17 (Asia/Europe), 2013: Microsoft and Foxconn Parent Hon Hai Sign Patent Agreement For Android and Chrome Devices ("Agreement provides broad coverage under Microsoft's patent portfolio to manufacturer of more than 40 percent of the world's consumer electronics.") (FOSS Patents coverage)

21. April 23 (U.S.)/24 (Asia/Europe), 2013: With ZTE, Most Major Android Makers Choose Licensing ("Under the agreement, Microsoft grants ZTE a license to Microsoft’s worldwide patent portfolio for ZTE phones, tablets, computers and other devices running Android and Chrome OS") (FOSS Patents coverage)

22. October 24, 2013: LG agrees to pay Vertical Computer Systems for another Android patent license (FOSS Patents coverage)

23. January 21, 2014: Huawei settles with Rockstar Consortium, will pay for Android's infringement of ex-Nortel patents (FOSS Patents coverage)

24. January 27, 2014: Ericsson and Samsung reach agreement on licensing terms (FOSS Patents coverage)

25. February 7, 2014: Nokia and HTC signed a patent and technology collaboration agreement (FOSS Patents coverage)

26. February 13, 2014: Microsoft and Voxx Electronics sign patent agreement for Android devices

27. February 20, 2014: Microsoft and Hop-on sign patent agreement for Android and Chrome devices ("[T]he parties indicate that Microsoft will receive royalties from Hop-on under the agreement")

28. March 21, 2014: Samsung settles with Vertical Computer Systems

29. March 26, 2014: Microsoft and Dell sign patent licensing agreement ("Under the terms of the agreement, they agreed on royalties for Dell’s products running the Android or Chrome platforms and on consideration to Dell for a license from Microsoft for Xbox gaming consoles.")

This list is inevitably non-exhaustive: most deals are never announced. Also, one could make an argument that Intellectual Ventures' license agreements with the likes of Samsung and HTC should be added to the list. IV is claiming in its dispute with Motorola Mobility (where a mistrial lately occurred in Delaware, but that's not the end of the story) that Android infringes some of its countless patents. It's rather conservative not to list those IV deals here, but the moment IV proves any infringement of an Android patent in court or announces a license deal that involves Android or settles litigation that targets Android, I'll add those deals to the list.

If you'd like to be updated on the smartphone patent disputes and other intellectual property matters I cover, please subscribe to my RSS feed (in the right-hand column) and/or follow me on Twitter @FOSSpatents and Google+.

Follow @FOSSpatents

Share with other professionals via LinkedIn:

Share|

Micrografx sues Google, Motorola, Samsung over vector graphics in Android, Chrome, Google Maps

Micrografx, a vector graphics software company from Texas acquired in 2001 by privately-held Canadian software company Corel (which markets the product Micrografx was best known for under the "Corel DRAW", previously "Corel DESIGNER" brand), wants Google as well as Android and Chrome device makers to license some of its patents, which are allegedly infringed by Android (at least by its Google Maps client, which licensed OEMs must redistribute), Chrome, and Google Maps. On Monday, Micrografx filed two parallel patent infringement complaints in the Northern District of Texas (where it is based), one against Google and its Motorola Mobility subsidiary and another one against Samsung (whose subsidiary Samsung Telecommunications America is based in the Dallas area just like Micrografx, thus in the district in which the suit was filed).

Ottawa-based Corel was reprivatized a few years ago and its current financials are not known, but its revenues are probably still in the hundreds of millions of dollars. It has continued to make acquisitions. Last year it bought Roxio, maker of popular CD/DVD burning programs.

Google complains about and funds campaigns against so-called "patent trolls", but neither Corel nor Micrografx meet anybody's definition of a "patent troll". Like no other software platform in the history of the industry, Android faces IP assertions by operating companies including (in alphabetical order) Apple, British Telecom, Ericsson, Fujifilm, Gemalto, Microsoft, Nokia, Oracle, Skyhook -- and now Corel's Micrografx.

Micrografx is asserting the same three patents, which it applied for not before it was acquired by Corel, in both cases:

• U.S. Patent No. 5,959,633 on a "method and system for producing graphical images"

• U.S. Patent No. 6,057,854 on a "system and method of providing interactive vector graphics over a network"

• U.S. Patent No. 6,552,732 on a "system and method of providing interactive vector graphics over a network" (same patent family as the '854 patent)

The infringement allegations against Google relate to "mobile phones, tablets, interactive vector objects, server systems, web browsers, notebooks, and mobile applications", naming specifically the Chrome Browser and Google Maps. Accused Google and Motorola devices include the Nexus 4, Nexus 7 and Nexus 10, Moto X, Droid Razr M/HD/Maxx HD, Photon Q 4G, Droid Ultra/Mini/Maxx, and Chromebook Pixel.

Samsung is sued for redistributing Android with the mandatory Google Maps client app and Chrome. The complaint names exemplary infringing devices including various Galaxy smartphones and tablets (including the S4) and the Chromebook.

Both complaints seek only monetary compensation ("in no event less than a reasonable royalty for Defendants' acts of infringement"), not injunctive relief. But this is not the kind of patent holder that would bring a nuisance lawsuit, i.e., sue only to settle at a level below the cost of a proper defense. This plaintiff presumably seeks significant amounts of money and is prepared to take a case to trial if necessary (which it probably will be, given Google's notorious unwillingness to license third-party patents).

One of the two law firms representing Micrografx is famous patent litigator Matt Powers's Tensegrity Law Group, which also represents Apple against Motorola in a couple of litigations.

Finally, here are the two complaints:

13-09-09 Micrografx Patent Complaint Against Google & Moto by Florian Mueller

13-09-09 Micrografx Patent Complaint Against Samsung by Florian Mueller

If you'd like to be updated on the smartphone patent disputes and other intellectual property matters I cover, please subscribe to my RSS feed (in the right-hand column) and/or follow me on Twitter @FOSSpatents and Google+.

Follow @FOSSpatents

Share with other professionals via LinkedIn:

Share|