German court's ruling may pose long-term concerns over Android

One expert argues Google needs to close-source Android

A German court's ruling on Monday that bars distribution of Samsung's Android-based Galaxy Tab 10.1 in most of Europe shocked many and raised some long-term licensing worries for Android globally, some believe.

Samsung is expected to appeal a preliminary injunction in Germany over what Apple calls a design infringement -- an imitation -- of its iPad by the Galaxy Tab. Samsung and other Android device makers face patent and design infringement lawsuits from Apple in the U.S., Australia, the Netherlands and elsewhere.

It's unclear whether Apple will eventually win its battle in the courts to ban sales of competing tablets and smartphones or settle with some Android makers, such as Samsung or HTC, and grant them design or patent licenses, which could raise the cost of their products.

Some analysts fear that the fallout over the Android intellectual property legal wrangling will have a chilling effect on thousands of Android developers, many of whom want to build apps that run on the most popular platforms and that bring in the biggest profit.

But the results of this case and others like it could mean that Google will have to license the Android mobile operating system in ways that better protect it from legal attacks, such as making it closed-source software subject to license fees rather than open source, said Florian Mueller, an intellectual property expert.

"Samsung will continue to fight Apple around the globe," said Mueller via email. "This is a serious blow to Samsung in a huge market. ... It will give Android device makers as well as developers pause." Mueller, however, expects Samsung to announce its intent to appeal the German decision soon, possibly as soon as Wednesday.

Mueller, who writes a blog mainly on Android patent disputes, has long urged Google to do more to legally protect Android device makers and developers. The German case relates only to a specific design right that Apple won in Europe, not to all Android products, Mueller noted. Still, the attacks on Android in lawsuits in other countries raise problems for Android overall, he said.

In the U.S., Apple sued Samsung in U.S. District Court for Northern California in April for allegedly copying features of Apple's iPad, iPod Touch and iPhones in its Galaxy smartphone and Galaxy Tab. Samsung countersued Apple a few days later, claiming infringement of Samsung's intellectual property.

On Tuesday, Mueller blogged that RBC Capital analyst Mike Abramsky had predicted that Android makers and Apple may reach settlements over their disputes in Europe and the U.S.

Why would Apple agree to settle? So it can win bargaining points for more favorable (to Apple) licensing agreements with Android makers in large markets, such as China. In China, intellectual property rights are considered less rigorous than in the U.S., making it harder for Apple to win an intellectual property rights lawsuit there, according to Abramsky's theory.

Mueller said the theory of how Apple will proceed would behoove Google to step forward and represent all 39 Android manufacturers, selling them closed-source licenses and negotiating with Apple over intellectual property disputes. "So long as Google makes large parts of Android's code available on open-source terms, there's no way to control and contain [competing Android makers]," he noted in his blog.

Even though Mueller says recent intellectual property rulings and actions should prompt Google to make major changes with Android's licensing, some analysts say the patent and design disputes are generally wasteful.

After Tuesday's decision in Germany, for example, Gartner analyst Ken Dulaney said via email, "The whole patent thing is a mess, with only the [manufacturers'] and lawyers' self-interests at heart."

Dulaney added that Android devices are as strong as ever compared with competitors, despite what the courts say. "Does this [ruling] make WebOS tablets more attractive? PlayBooks more attractive? I don't think so."

He noted that while the iPad is the most popular tablet, Android will stay ahead of other competitors. For instance, with the upcoming Ice Cream Sandwich version of Android, users will be able to use a single mobile application across both tablets and smartphones, which will be of considerable value, he noted.

Jack Gold, an analyst at J. Gold Associates, said the German ruling is not all that broad-reaching and is "not so much a swipe at Android as it is at Samsung." Gold said the issue boils down to how a court defines copying a technology or innovating with a new technology. "There are just [limited] ways you can do things to be competitive in product function," Gold said. "Do all LCD TVs copy one another?"

Gold said the German court "seems to think that anything that resembles the iPad is blatant infringement." But, he added, U.S. courts have a higher burden of proof and predicted a different outcome in the case filed in California.

Still, Gold said the ruling is "bad news for Samsung," adding that "these [intellectual property] wars seem to be getting out of hand, with the greatest detriment to end users, who will have less choice and, as a result of reduced competition, will pay higher prices."

"It seems that companies, rather than competing on products, want to compete on patents these days," Gold said. "Sure, companies deserve to get paid for their intellectual property, but some of the minutiae of the patent [disputes] border on the absurd."

Matt Hamblen covers mobile and wireless, smartphones and other handhelds, and wireless networking for Computerworld. Follow Matt on Twitter at @matthamblen or subscribe to Matt's RSS feed. His e-mail address is

Copyright © 2011 IDG Communications, Inc.

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