Apple and Microsoft: Frenemies beat back Android axis in mobile patents

Tech giants are unlikely allies in fighting unfair use of mobile standards that use so-called FRAND patents

[UPDATED 8/28/12] For over a year now, we've been hearing about the mobile patent lawsuits involving Apple, HTC, Microsoft, Motorola Mobility, Samsung, and other key tech companies. For most of us, it seemed like legal mumbo-jumbo and schoolyard bullying by all concerned. But there've been a bunch of court decisions and revelations recently that have made clear what's really at stake and why we all should care.

I'm also convinced now that Apple is mainly in the right and its Android competitors are playing dirty. No wonder Microsoft has joined in on Apple's defense. When all is said and done, the Apple/Microsoft argument should win; fortunately in the courts, it appears that it may. (A big shout-out goes to the FOSS Patents blog, whose author Florian Müller -- an experienced patent consultant -- has over the months provided an amazing education on all the issues involved. Note that after this post was written, Müller became a paid consultant to Oracle over its unrelated lawsuit against Google over Android patents, a case Oracle mainly lost.)

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The patent cases that got the attention but aren't the main show
The case that got most of the media attention was Apple's lawsuit against Samsung for copying its design patents. In simple English: Samsung's Galaxy Tab 10.1 was designed to look like an iPad, and Apple cried foul at that potential market confusion. There are several kinds of patents a company can hold to give them a monopoly on their "nonobvious" ideas -- their inventions -- and one is for the design of a product. Such design patents are common for apparel, handbags, furniture, wristwatches, and the like; they're meant to prevent a goods maker from cloning a competitor's design to fool buyers.

Design-conscious Apple also uses design patents to ensure that competing products look different. That's why Motorola Mobility smartphones and tablets have that distinct corner shape -- you know instantly that they're Motorola products and, as important, not Apple ones. Samsung's Galaxy Tab 10.1, the first real challenger to the iPad, by contrast looks a lot like an Apple iPad. Apple's sure that was intentional -- and that Samsung is doing more of it since their legal fight began. Most courts appeared to agree with Apple so far on the basics (it looked obvious to me), though they don't seem to believe that Apple's design patents protect as much as Apple would like. UPDATE: It was obvious to a jury, too; a federal court in the U.S. ruled on Aug. 25 that Samsung willfully copied Apple's patented designs and behaviors.

Then there are the skirmishes over technology patents that one company claims another has violated. Sometimes these are justified, as may be the case in Motorola Mobility's suit against Apple (and Microsoft) related to push notification patents. Other times -- as in HTC's suits against Apple -- they appear to be a convenient legal weapon meant to get a settlement from a company unwilling to fight.

As has been clear over the last year, Apple is more than willing to fight, so anyone using patents as a negotiation technique against Apple has likely come to regret doing so. Also, Apple has decided to push the issues, which has resulted in gaining or strengthening patent rights in a way that its Android-based competitors may eventually regret.

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