31st of October. It’s a date millions of young boys and girls will remember as a fun-filled occasion of candies and sweets, ghosts and ghouls, and jack-o’-lanterns. On the other hand, Google and Co. will remember it as the eventful day when they were massively trolled.
Much like the history of Halloween, the developments leading towards this nuclear-level, momentous event is just as interesting, gripping, and downright peculiar in the world of tech and law. Back in 2009, Canadian-based, telecom company Nortel went into liquidation in 2009, auctioning off its biggest asset, a portfolio of mobile, networking, and telecom innovations, to some of the biggest players of the industry of today, including Google, Microsoft, Apple, RIM, Sony, and Ericsson. The latter four operated under the name “Rockstar Bidco.” In the end, the ‘coalition of the 5′ won with a bid of $4.5 billion.
And that should’ve be the end of that. Except it wasn’t.
On the 31st of October 2013, Microsoft, Apple, RIM, Sony, and Ericsson went all out, filing a plethora of lawsuits against Google and a number of Android manufacturers including Samsung, HTC, LG, Huawei, and Asustek on the case that Google had, and is still continuing to, infringe a multitude of patents. Such ‘patent-trolling’ is of course not new to the tech world, as we’ve seen Apple, HTC, Samsung, and even Google and Motorola themselves having taken it to the courts to settle what can’t be settled with fair competition, innovation, and a bit of humility and tolerance.
What turns this up to ‘nuclear’ level, as interpreted by commentators, lies within the patents themselves, one of which is United States Patent No. 6,098,065 dating all the way back to 1997. What does it constitute? “Matching search terms with relevant advertising”. In fact, this patent is just one of a family of patents, all collectively titled as “associative search engine.” Most of us would know just exactly what this means. If Google is to be ruled as unlawfully infringing on such patents, they’re about to lose big time. As VentureBeat states, “It’s genius, really. Why attack your enemy’s toes when you can go straight for the heart”. And it’s true. Rather than trolling around on the ambiguous rectangular shapes of phones, or suing someone because they changed their twitter handle, Rockstar aimed directly at Google’s advertising ventures.
As a post-modernist would fervently preach, there are multiple ways to interpret this. One who looks at the 81% global market share of the Android operating system in Q3 of 2013, who compares it with Apple’s 13.4%, Windows’ mere 4.1%, and Blackberry’s pitiful 1%, and who most likely also uses an Android device, will probably see such patent-trolling as the venting of the hormone-raging adolescent fits of frustration, anger, and jealousy, and understandably so. The plaintiff, Rockstar, ‘coincidently enough,’ house all the ‘losers’: Apple, Microsoft, and RIM, and the only way for them to have a fighting chance when backed into a corner is to chuck lawsuits here, there, everywhere. Hell, despite the irony of Sony and former Android manufacturer Ericsson also joining them at the plaintiff stand, it’s still not surprising considering the small market share they command. Furthermore, one may even claim that Rockstar is truly undermining the ethical standards of the industry. How? “When Wired visited Rockstar’s Ontario headquarters, it found 10 reverse-engineering experts, working daily to take apart products and to find patent infringement” [arstechnica]. In doing so, Rockstar hopes to blackmail as many technology companies to pay licensing fees. “It’s patent trolling gone corporate.”
But as Polybius once stated, one must also see “the rationality of the reverse.” Google isn’t the innocent victim of the schoolyard bullies, or at least not to the extent many may interpret them as. Motorola, a wholly-owned Google subsidiary, has filed patent lawsuits against Apple numerous times, calling for an import ban on some of the fruit’s most popular products in the US. Baseless or legitimate is besides the question, as so far it seems as though Rockstar’s patent lawsuits do have a pretty convincing case. This is evident with their argument that Google was knowingly and willingly infringing such patents with:
“Google was aware of the patents-in-suit at the time of the auction.
Google placed an initial bid of $900,000,000 for the patents-in-suit and the rest of the Nortel portfolio. Google subsequently increased its bid multiple times, ultimately bidding as high as $4.4 billion. That price was insufficient to win the auction, as a group led by the current shareholders of Rockstar purchased the portfolio for $4.5 billion.
Despite losing in its attempt to acquire the patents-in-suit at auction, Google has infringed and continues to infringe the patents-in-suit.”
In fact, Google has even been found guilty of FRAND abuse, with a federal judge back-handing them with a $14.5 million payout to Microsoft as recently as September 2013. Additionally, Google dun goof’d strategically when they underbid for the Nortel patents with $4.4 billion, which basically started this whole mess. So did Google call this upon themselves? Maybe.
What does this mean for us? Well, we’re stuck in the deep end no matter how you look at it. If Google loses, don’t be surprised when Android doesn’t stay as ‘free’ as it currently is. The millions of dollars Google has to dish out in fines, as well as the additional millions in patent payments and licensing fees will inevitably impact the rest of the Android ecosystem. If Google wins, tens and hundreds of millions of dollars will accumulate as litigation costs, directing funding for research and design to the pockets of lawyers.
It’s unfortunate really, that the state of the industry has degenerated to such depths, that companies are now in essence scraping the dregs of the barrel. In the end, this reveals the ugliness of the tech world, which seems to be increasingly following the philosophy: “If you can’t beat them on your own and with your own devices, take them to court and cross your fingers.”