Will hostile patent suits force phone makers to pay more for "free" Android than Windows Phone 7?

Google lashed out today at Microsoft, Apple, and Oracle over the spate of patent suits targeting Android, charging that the companies are running a "hostile" and "anti-competitive" campaign. In one of the more dramatic charges, Google claims that it may result in phone makers being forced to pay more to use Android than Windows Phone 7.

David Drummond, Senior Vice President and Chief Legal Officer, wrote in a hard-hitting blog post that because of Android's success there is now:

a hostile, organized campaign against Android by Microsoft, Oracle, Apple and other companies, waged through bogus patents.

In schoolyard terms, that's close to gentleness. Coming from a lawyer, it's more like a call to a knife fight.

Drummond argues that a group, including Apple and Microsoft, purchased old Novell and Nortel patents not because they wanted to use the patents, but in order to use the patents as the basis for suits against Android. The companies, he claims, are:

seeking $15 licensing fees for every Android device; attempting to make it more expensive for phone manufacturers to license Android (which we provide free of charge) than Windows Mobile; and even suing Barnes & Noble, HTC, Motorola, and Samsung. Patents were meant to encourage innovation, but lately they are being used as a weapon to stop it.

At this point, it's certainly not more expensive for manufacturers to use Android than license Windows Phone 7, even for those manufacturers who have settled Android-related suits.

However, Drummond certainly has a point. Microsoft has no doubt gamed the patent system as a way to get revenue from manufacturers for the use of Android. And back in May Citi analyst Walter Pritchard said that Microsoft was making more money from Android than from Windows Phone 7 because of its pursuit of lawsuits against Android, including one in which HTC pays Microsoft $5 for every device sold that uses Android.

Still, Drummond is guilty of hyperbole. Florian Mueller, who follows the suits against Android, told Computerworld:

"As an observer of those disputes, I actually don't see any indications of an 'organized, hostile campaign' going on."

Rather, he said, it's merely standard operating practice --- companies stockpiling patents and using them as weapons against their competitors.

Drummond may be guilty of hyperbole, but his essential point is right: Patents are being used to discourage innovation, rather than protect intellectual property and encourage innovation. The suits against Android are one more example of why the patent system needs reform.

Copyright © 2011 IDG Communications, Inc.

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