Google sues to protect Android device makers from Apple-backed patent hell

http://gigaom.com/2013/12/24/google-sues-to-protect-android-device-makers-from-apple-backed-patent-hell/

by kirtijthorat • 13 years ago

125 120 13 years ago

Meanwhile, in response to abuse of the patent system by so-called “trolls,” the House of Representatives has passed a bill called the Innovation Act (details: http://www.gop.gov/bill/113/1/hr3309) to fix the worst abuses. The bill is expected to pass the Senate and be signed into law next year. Significantly improving patent quality is no easy task and would likely require fundamental changes to patent law, to the PTO, and to procedures for examining patent applications. New rules to reduce “smash-and-grab” patent trolling is VERY IMPORTANT and hope our Govt. acts on this bill asap.

sigzero• 13 years ago

I don't think that would help in this case since this isn't a patent "troll" but a conglomeration of companies.

kirtijthorat3• 13 years ago

You're absolutely correct but I just wanted to bring that topic just for the general awareness on the "patent troll" subject. Also, I found the following information on "conglomeration of companies" : In 2011, a group of technology companies that included Apple, Microsoft, Sony, and BlackBerry banded together to outbid Google on a bundle of patents from Nortel Networks. This cadre was victorious, paying $4.5 billion for around 4,000 patents, which Google couldn’t match. Now the group, which calls itself the Rockstar Consortium, is reportedly looking to offload some of those patents.

k-mcgrady• 13 years ago

Didn't think it possible but this sensationalist headline is topped by the image of a mushroom cloud at the top of the article.

cryptoz• 13 years ago

That's probably a reference to Steve Jobs declaring "thermonuclear war" on Android - the sensationalism is from Apple, not the article's writers/editors.

benliong256• 13 years ago

Really? You're asserting that there's no sensationalism on the part of writers / editors whatsoever by choosing that headline and that image?

Seriously?

I don't agree with what Jobs said, and he's obviously saying that out of personal hurt. But saying that this article isn't sensationalism, especially when the headline says it's Apple backed and not mention anything about a group of companies banding together ... you and I have very different interpretation on sensationalism.

jdechko2• 13 years ago

I'm definitely splitting hairs here, but I think there's a distinction to be made between a non-practicing entity (patent troll) and a consortium of companies that pooled together to purchase patents. Rockstar may not make devices itself, but it consists of, and represents, companies that do.

Just saying.

kelnos• 13 years ago

Perhaps, but I find the end result to be just as vile: a conglomeration of companies banding together to bully a weaker[1] rival. That sounds like anti-competitive behavior to me.

[1] Weaker in relation to the combined power of the conglomeration, anyway.

jdechko2• 13 years ago

Not that it makes it right, but does anyone think that Google wouldn't have used these patents offensively against the Rockstar companies if they had ended up with them?

iribe• 13 years ago

The laws in the US are pretty clear on this subject. In general, as soon as you start colluding between companies, pooling resources, shaking hands and ganging up against one company, antitrust comes into play. Just look at what happened to Apple and publishers, standard oil, etc.

Having said that, one of the parties involved in collusion was Microsoft. They covered their tracks well, as they have had more than a few run ins with the government here. You can see that in the, "Look, we asked them to join us, they chose not to do so" line.. Which was a laughable point by the way, as joining their group wouldn't have allowed for protecting android manufacturers. But it provides an alibi for regulators. IMO, it's not a very good alibi.

Microsoft and Apple took a huge risk in their collusion. I imagine discovery might bring up some juicy tidbits. I figure they knew the risks, but reasoned that sticking it to their biggest 'problem' was worth the risk of getting caught up with regulators. So that tells you about how scared they are.

gillianseed• 13 years ago

They 'pooled together' to buy third party patents with which to try and attack a competitor's product as they can't compete against it on the virtue of their own products in the open market place.

Technically you may be correct but I really think the 'troll' moniker is apt in this case.

curiousDog• 13 years ago

Why think of it that way? Perhaps they bought those patents for use in their own devices. Perhaps they've been paying Nortel to use them up until they bought them out.

clarky072• 13 years ago

Right. Apple can't compete at all with android devices. Those same android devices that were originally copies of iPhones. Remember that android was just a better blackberry before iPhone came along.

richardw2• 13 years ago

Rockstar was created specifically to avoid creating products which might infringe on others' patents, so it could subvert and cross licensing deals that exist. If Rockstar enjoys the benefits of being a separate legal entity, surely it should bear the disadvantages as well?

richardw2• 13 years ago

In fact, Rockstar is basically Intellectual Ventures with different investors. Google seems to be an IV investor, I assume defensively.

http://m.iam-magazine.com/blog/Detail.aspx?g=2f9ac708-83af-4...

kirtijthorat3• 13 years ago

I have been digging more on this and found the following interesting article by Forbes magazine titled "Why Google Needs To Take Rockstar's Complaint Seriously" Here is the link to this post: http://www.forbes.com/sites/rakeshsharma/2013/12/05/why-goog...

The article ends with a solid statement as: “It may be that they (Google) should have bid more (at the auction for Nortel’s patents) based on the realization that these patents were vital to their search business,” says Rappaport from IP Checkups

ChuckMcM• 13 years ago

Its not a hair split, consider MPEGLA, they don't make anything, they just provide a one stop shop for patent licenses. Or Public Key Partners. The list goes on.

I agree with the Nortel Retirees that Google knew this was coming, they just decided it would cost less to defend than the $X billion dollars they would have had to bid to get the patents.

AnthonyMouse6• 13 years ago

Rockstar may not make devices itself, but it consists of, and represents, companies that do.

Then tell us why they don't file the suits in their own names.

It's clearly because they're doing something distasteful and don't want to get the stink on themselves, and because they don't want to be parties in a court case where the judge has the ability to rule against them once and for all or impose penalties.

throwawaykf039• 13 years ago

They didn't file these specific suits "in their own names" because these patents aren't owned by them but by Rockstar, a separate entity of which they are only shareholders and which apparently has committed to the DoJ and FTC to operate autonomously [1].

But they did file a bunch of other suits "in their own names". Both Apple and Microsoft are involved in litigation with other Android manufacturers in multiple jurisdictions, so it's not like they're unwilling to get their hands dirty.

1. https://news.ycombinator.com/item?id=6962488

DannyBee• 13 years ago

Rockstar is not a consortium. It's a separate entity. It does not "consist of other companies".

alan_cx2• 13 years ago

Oh yeah. You just made it a conspiracy to patent troll. Nice one.

collyw3• 13 years ago

Apple and Google apparently spent more on legal fees than R&D last year.

http://gizmodo.com/5949909/apple-and-google-spent-more-money...

Just sayin.

netcan• 13 years ago

>there's a distinction to be made between a non-practicing entity (patent troll) and a consortium of companies that pooled together to purchase patents

Its a semantic question. But my (soft) definition is a company that buys or registers patents, waits for them to be violated, then extracts licensing fees via legal threats or lawsuits. The non practicing pure trolls are just specialists.

mikhailt4• 13 years ago

Except Nortel did use many of those patents. They decided to sell it to Rockstar, full of owners who are likely licensing the patents to themselves for use in their products. Yes, technically Rockster is an individual company that doesn't make/sell any products but it's not a troll just because of that. It's a troll if the owners didn't use it in their products.

By this logic, any standard bodies would be trolls as well if they decide to sue any companies that infringe without paying the fees.

Caligula• 13 years ago

I worked at Nortel. Selling the patents provided important money to the fucked over Nortel pensioners. These patents were used for real work, cost massive resources to fund, and Google could have outbid Apple.

pg3• 13 years ago

Lots of the patents now used by patent trolls were originally granted to companies that meant to use them to protect things they built. What matters here is not Nortel, but Rockstar. And Rockstar frankly seems to me to be worse than ordinary patent trolls. Ordinary patent trolls are just running protection rackets. Rockstar was created not to make money but to suppress competition.

throwawaykf039• 13 years ago

Posted this link [1] in another comment, but apparently Nortel was in licensing negotiations for years before Rockstar was formed, and its CEO claims the current owners had no say in filing these lawsuits.

1. http://www.iam-magazine.com/blog/detail.aspx?g=d258542c-dbfc...

mikhailt4• 13 years ago

Google was offered a seat in Rockstar, they also placed a bid, and so on. They didn't want to.

What exactly do you expect Rockstar to do when several Android OEMs are infringing on their patents without paying for it?

paul92902• 13 years ago

" Rockstar was created not to make money but to suppress competition."

Is that not the point of patents?

Suppress copycats and or extract monies for their copying/profiting from your novel works?

_Simon7• 13 years ago

Bullshit. Google were offered a place at the table.

namespace2• 13 years ago

Interesting times. There is no doubt that the legal punches thrown at Android have been anti-competitive and kills innovation instead of what there were meant to protect. For example reportedly Microsoft earns more from Android than selling Windows phone: http://www.zdnet.com/microsoft-is-making-2bn-a-year-on-andro.... If the patents were that useful for innovation, Microsoft would have been ahead of Google by miles.

X-Istence• 13 years ago

Except that Microsoft innovated, got there first and clearly has something valuable if other companies are using it's IP (self evident since companies are paying them licensing fees).

codygman• 13 years ago

The reason for paying licensing fees doesn't have to be that Micro$oft has something valuable, it could very well be they are afraid of legal repercussions.

pyre3• 13 years ago

self evident since companies are paying them licensing fees

Not necessarily. Companies could be paying them licensing fees because it's less costly then a protracted court battle with an unknown outcome.

mikhailt4• 13 years ago

A serious question, what was the patent system created for?

... gives Congress the power "[t]o promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries;" (Article I, Section 8, Clause 8).

From what I read based on what some legal experts simplified but again, "it's the Internet" but basically, they considered patents as legal rights to monopolize on such innovations.

So, based on that, exactly how is it anti-competitive to disallow other companies to use the said patents unless they agree to pay for the rights?

jasonlotito• 13 years ago

One could easily make the argument in this context by this part: "by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries."

The argument here is that the only ones that should benefit from this are the authors and inventors, and they and only they are granted "exclusive" rights. No one else. In fact, I'd find that fair. The implication being you can't sell or transfer those rights to someone, and those rights are only granted to the authors and inventors.

Which leads us to this question:

"exactly how is it anti-competitive to disallow other companies to use the said patents unless they agree to pay for the rights?"

It's not, as long as the one doing the license is the author or inventor. One should not be able to transfer those rights to a third party, as it's explicitly an exclusive right.

stormbrew• 13 years ago

It's by definition anti-competitive. Its entire purpose is to reduce competition so that the inventor can profit from it. Even if inventors were required to license their inventions to other people for a truly fair rate it would still be anti-competitive since it would increase the costs (and thus barrier to entry) of competition. The inventor still enjoys a significant advantage in the market (not having to pay the license fees).

It's fair to ask if it's bad for there to be an official form of anti-competition, but call a spade a spade.

rajeevk2• 13 years ago

What kind of innovation do you see in Android? It has been almost being copy-pasted. Google copied everything, from kernel (Linux) to UI design and trying to make lot of money from it and expecting others not to sue.

EDIT: The replies of this comment say that the others (Apple etc) are too copying and copying kernel in not wrong. Well, I did not say that copying is wrong. What I mean is that copying is NOT innovation.

gtaylor• 13 years ago

To be fair, Apple has done its fair share of copying the last few years, too. They all do it now. Singling out one is pretty silly these days.

Also, Android didn't copy the kernel. They adopted it, modified it, and abide by the license (and have even started contributing changes upstream).

Datsundere• 13 years ago

I think the correct term you're looking for is 'forked'. Which inevitably brings forth the discussion of dongling the fork, or is it forking the dongle?

BTW, widgets were original to android in regards to apple, were they not?

namespace2• 13 years ago

There is nothing wrong with "copying" kernel. This is what the open source is aimed at: Infectious growth. In fact that was the right and smart thing to do.

nivla• 13 years ago

have been anti-competitive.

Although it seems so now, keep in mind Google bid for these patents themselves and lost. They were also offered to join the Rockstar consortium, which they declined. Unfair definitely, but not enough to qualify as anti-competitive under a black & white banner.

millerm• 13 years ago

Seriously, a horribly biased "article". I don't prefer this style of journalism.

twentysix• 13 years ago

Slightly offtopic, but Article One recently launched a crowd-funding project[1] aimed at helping start ups affected by actual patent trolls.

According to the project page,

"Our goal is to launch and maintain a completely free, data-rich, up-to-date, member-supported database that small companies can use to help defend against patent trolls."

They are starting with a patent owned by Treehouse Avatar Technologies regarding gaming avatars. Treehouse has been targeting indie game developers using US 8180858[2].

Eventually, they plan to build a prior art database targeting the most abused patents and provide small start-ups with free access.

[1] http://www.indiegogo.com/projects/operation-ninja-s-t-a-r-he...

[2] http://google.com/patents/US8180858

bananacurve• 13 years ago

Today, Rockstar employs once-proud Canadian engineers to work as high-tech ring-wraiths in service of its American trolling operation.

At least they didn't oversell it.

throwawaykf039• 13 years ago

Saying "Apple-backed" (or "Apple and Microsoft owned" as past articles have) insinuate that those companies are pulling the strings, which is not necessarily true. Straight from the horse's mouth [1]:

Given the amount they paid and given the on-going issues at least some of them have with both Google and the Android platform, many reports have talked about the consortium going on the attack or have assumed that it is the shareholders that have driven things. This is categorically not the case, Veschi says. “It was entirely my call based on the facts in front of me,” he states. “The shareholders got an email telling them what had happened after the suits were issued.”

You might not believe him, but it's not necessarily that unbelievable. For instance, Intellectual Ventures is, in a way, "Google-backed", since Google invested in one of their "funds" (or whatever they call it). Yet IV turned around and sued Motorola two years after Google acquired it.

1. http://www.iam-magazine.com/blog/detail.aspx?g=d258542c-dbfc...

kkowalczyk• 13 years ago

We don't need to insinuate anything.

It's clear that both Microsoft and Apple are pulling the strings. They didn't collectively spend $4.5 billion to just have Rockstar do whatever they want. (Not that creating a patent troll under any scenario is morally defensible for Microsoft or Apple).

The shell games provide them plausible deniability only to naive.

They sued Android. Android is a big threat to both Microsoft and Apple.

Coincidence? I don't think so.

throwawaykf039• 13 years ago

In case you didn't read the article I linked, the CEO of Rockstar created these licensing programs while they were still Nortel-owned and has been in negotiations for years before Rockstar was formed. This was a long time coming and all the potential infringers knew it, which was why the auction was in the billions of dollars.

They sued Android. Android is a big threat to both Microsoft and Apple.

Rockstar sued some Android phone makers because it infringes their patents and they don't have a license. Note that they didn't sue Sony, who makes Android phones, because Sony, being part of the consortium, has paid for those patents.

pyre3• 13 years ago

They sued Android

They didn't sue "Android." "Android" is an operating system; a collection of software. One cannot "sue iOS" or "sue Windows" either.

sethbannon• 13 years ago

Sadly I'm becoming more and more convinced that the only solution to the broken way patents work in this country is for things to get so bad, and these troll lawsuits to get so egregious, that Congress is forced to act and overhall the entire system.

allochthon• 13 years ago

Rockstar in my mind is symbolic of everything wrong in the tech industry these days. I love Apple products, but I love Apple just a little less for getting its hands dirty in this. Obviously there are other companies as well, but I'm not as attached to them. If this ends up speeding up patent reform, I guess it's worth the bitter pill. I'm tempted to switch to Android the next time I get a phone.

psbp• 13 years ago

This is the case that gets you pissed off at Apple's use of patent litigation?

guelo• 13 years ago

Totally off topic but you just triggered a mini rant in me. Apple products are awful. Just today I was cursing Apple over the ridiculous "lightning" connector scandal. It's incomprehensible to me how Apple users keep taking the abuse to the point that they blame themselves for Apple's shenanigans. It's some kind of stockholm syndrome.

liviu• 13 years ago

Google is now crying like a little kid after they tried unsuccessfully to buy Nortel patents... Pathetic.

beedogs2• 13 years ago

Wow, the guy in the comments section of the article just nonstop trolling for Rockstar/Apple is unbelievable.

andy_ppp2• 13 years ago

Simple solution, the law should be:

A) only companies using patents directly can sue

B) the maximum damages that can be awarded are 2x revenue related to the patents

This means that companies actually using patents and making a business out of them can benefit and stops patent trolls.

Am I crazy?

rednukleus• 13 years ago

What about patents that come out of universities?

How do you determine the "revenue related to the patents"?

salient4• 13 years ago

Universities have patents for the purpose of selling them, no? If a company is making something and wants to use it, then they buy the patent. No different from today in that case. The only difference is that trolls can't buy the same patents in order to sue others, like IV, Rockstar, and others are doing.

andy_ppp2• 13 years ago

When has a university ever sued someone? Patents generally end up being bought by companies using them... Unless shenanigans are at play.

sbuk2• 13 years ago

Title is misleading. Rockstar isn't backed by a single entity. It's flame bait and many of you have taken it.

Merry Christmas.

throwawaykf039• 13 years ago

If the Rockstar shareholders can be shown to have direct control over this, the DoJ and FTC may get involved. From this interview/fluff piece: http://www.ip-rockstar.com/Press_Releases/IAM%20Rockstar%20A...

Commitments to the DoJ

The sale of the Nortel patents closed on 29th July 2011, which also happens to be Veschi’s birthday. But it took another few months – until Spring 2012 – for the acquisition to receive clearance from the US Department of Justice (DoJ). Although this approval may have taken some time to obtain, the only commitment that Rockstar itself gave to the DoJ (and the Federal Trade Commission) was that it would operate autonomously. This, explains Veschi, was so that the shareholders “as operating companies cannot pick and choose who we will target”

DanBC2• 13 years ago

Mangalyaan cost about $90m.

How many robots could we have exploring the solar system if companies weren't throwing money into stupid patents?

Like the Banana Equivalent Dose to explain regular radiation we need some easy to grasp comparison to explain just how much money is being wasted in this stupid system.

belgianguy2• 13 years ago

Patent reform is highly needed or patents risk to become nothing more than minefields that already established players will use to stall - and ultimately defeat - newcomers and innovation in general, rather than dissemination of information and furthering of the sciences. Software projects (especially Open Source) projects that get popular don't stand a chance against these trolls. Don't think this is just something we need to read about.

Action is required.

At the moment Google/Android are being attacked by Rockstar Bidco, the Patent Troll King. It owns >6000 (ex-Nortel) patents, which (Microsoft, Apple, Sony, RIM and Ericsson bought jointly) they all stuffed into the Rockstar Bidco company that has no other function than suing possible 'infringers'. Given the vagueness and fondness of the USPTO to 'create intellectual property', this could be the perfect patent storm and Rockstar's boss said it himself: 'Pretty much anybody out there is infringing'. Meaning that whatever gets into the crosshairs of Rockstar, is on the hook for possibly millions of dollars. Who can defeat a titanic patent Frankenstein as big as Rockstar Bidco? It cannot be sued because it produces nothing (aka an Non Practicing Entity). But it has enormous wealthy backers, so it can sue everyone for everything and just sit it out. In fact, its owners all hold patents on the mobile industry, so the 'urgency' and 'usefulness' of Rockstar could be questioned, outside of being a 'bigger stick to hit Android with'. Google or the Android manufacturers have no option but to face the lawsuits.

Google will have a hard time fighting them off, but I don't see the Android manufacturers survive in one piece. And that's exactly the idea: eradicate Android, make all software development that isn't owned (or graced) by the Rockstar owners a sticky patent mess, leading to a small set of 'friends of Rockstar' who can afford to develop software in peace. That's not only bad for Android or Google, that's a bad sign for software development in general.

Because what if Rockstar Bidco all of the sudden 'feels' that the SteamBox could threaten the Xbox/Playstation duopoly? What if Rockstar Bidco thinks that Ubuntu Phone OS is something that is in infringing on their phone software patents? Who will stand up for them? Of course Rockstar Bidco claims that they are independent, but that was only believed by fools when they formed and only idiots believe it now after the other shoe has dropped (Apple, RIM and Microsoft all attacking Google/Android).

And to the supporters of Rockstar, just to be clear: Google was only invited for a jointly bid on the Novell patents, never on the Nortel patents. As per the legal counsel of Google:

Microsoft’s objective has been to keep from Google and Android device-makers any patents that might be used to defend against their attacks. A joint acquisition of the Novell patents that gave all parties a license would have eliminated any protection these patents could offer to Android against attacks from Microsoft and its bidding partners. Making sure that we would be unable to assert these patents to defend Android — and having us pay for the privilege — must have seemed like an ingenious strategy to them.

In short: Microsoft told them it was going to shoot their dog but offered them to hold the gun when they did it.

The fact that so many frivolous software patents exist is bad enough, the fact that 5 of the biggest tech companies conspired to create the ultimate patent troll is outright disgusting.

Hate Android/Google all you like, but such constructions aren't healthy for a competitive market, they'll just swallow more and more patents, and attack more and more companies, until nobody bothers because of relentless lawsuits as soon as something somewhat popular is produced.

No developer will sleep easy at night when this becomes the default, as an NPE is like a ghost, not subject to the same attacks as a regular business, which makes it so much harder to defeat.

If software can only be developed by the graces or whims of companies like Rockstar Bidco, the software industry will bleed to death in an instant.

Google sues to protect Android device makers from Apple-backed patent hell

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