Google, Microsoft and Apple letters aim to keep regulators at bay

IDG News Service - As patent infringement lawsuits continue to pile up in the mobile industry, Google, Apple and Microsoft appear to be trying individually to reassure regulators and standards bodies that they won't use their patents to build a monopoly, experts said.

On Wednesday, Microsoft issued a short blog post describing its policy around licensing essential patents, Google sent a long letter to the IEEE outlining its intentions around licensing Motorola's patents and Apple laid out its licensing policy in a letter sent to ETSI late last year that just came to light.

The Institute of Electrical and Electronics Engineers and the European Telecommunications Standards Institute are both standards setting bodies. Antitrust authorities look to licensing commitments that companies make to bodies like ETSI when considering antitrust allegations.

"These are efforts on the part of Apple, Google and Microsoft to reassure the standards organizations that they'll play fair," said David Mixon, an attorney with Bradley Arant Boult Cummings who has been following the mobile patent wars.

All of the letters specifically address licensing patents that are considered essential to standards. That's important because if a company were to use the courts to prevent competitors from selling products because of the infringement of a patent that is required in a standard, that company could essentially create a monopoly, said Alexander Poltorak, CEO and chairman of General Patent Corporation, a patent litigation firm.

The letters are aimed are reassuring regulators and standard setting bodies that the companies don't intend to go that far, he said.

"To attempt to assert a standard essential patent and ask for an injunction is to wave a red flag in front of a bull. It's to invite an antitrust inquiry, and nobody wants to do that," he said.

Each of the letters addresses the companies' policy around injunctions. Microsoft's is the most straightforward. It simply says it will not seek an injunction or exclusion order against any company based on an essential patent.

There's a good reason that Microsoft's statement is much clearer than the others. "It's really laughable," Poltorak said. "They can't possibly seek an injunction because they operate under the shadow of the Justice Department." Even though Microsoft is no longer subject to DOJ oversight following its antitrust investigation, the agency continues to closely watch the software giant. Microsoft agreed to DOJ oversight, which ended last year after 10 years, after the agency found the company violated antitrust laws.

A careful read of the Apple letter shows that it suggests a clever arrangement, he said. "They are making these statements on the surface that sound very good but if you start looking closely you see that they leave a lot of room for themselves to play this game the way it works for them," he said.