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

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The patent fights that matter involve standards-based technologies
But the design patent fight that captured most people's attention isn't the one that matters. No, the patent fight that matters -- and involves pretty much everyone in the smartphone and tablet business -- is over something called standards-essential patents. These are patents for technologies that are adopted by standards organizations. They're treated differently than other patents precisely because they've been incorporated into standards.

Normally, a patent is used to ensure that no one else can produce the good or service relying on the innovation without paying a license fee negotiated by the patent holder and the business wanting to use it. If they can't reach an agreement, the potential user has to find another way to deliver the product or service, or stop trying.

But if a patent is used in a standard, the patent holder has to agree to make it available to all comers under fair, reasonable, and nondiscriminary licenses, known as FRAND licenses. Otherwise, a patent holder could favor some businesses and abuse others by treating them differently for something they all must use because the patent is essential to a formal standard.

That's what the significant mobile patent fight is all about. Motorola tried to use its standards-essential 3G networking patents to force Apple to license all of Apple's non-standards-essential iPhone patents -- which would make Apple give up its crown jewels to simply implement the 3G technology all smartphones require. Apple refused to what agree to what it considered excessive licensing requirements by Motorola, and Motorola sued.

Now, after months and months of legal tussling, courts in the United States, Europe, and elsewhere appear to be generally siding with Apple. So is the European Union, which expressed concern about such practices through its executive arm, the European Commission, when it reviewed Google's pending acqusition of Motorola Mobility.

Samsung is involved in a similar case, again involving its standards-essential patents and allegations it would license them to Apple under more onerous terms than provided to others. Given that Samsung is both a major supplier to Apple (not for long, I suspect) and the leader of Apple's Android competition, it's easy to see why Apple got so upset and began upping the ante both in the courts and in its own patent filings. It appears to me -- and I suspect to Apple, the courts, the International Trade Commission (another venue for patent fights), and the E.U. -- that Google is fighting Apple unfairly through Samsung, Motorola, and HTC. (The same U.S. jury that found Samsung copied Apple's designs also found that Samsung unfairly withheld its wireless FRAND patents from Apple.)

Even the German courts -- which are considered the least likely to support FRAND claims -- have decided the Android axis has gone too far. This is why so many cases have been brought in Germany, where Samsung and Motorola seemed to think they'd be favorably treated.

But the fight is not just between the Android kingpins and Apple. Similar FRAND-abuse tactics are being applied against Microsoft by Motorola and others. Microsoft of course has gotten most Android makers to license some of its non-standards-essential patents, which may be a low-level fight against Android or a response to the Android makers' suits (I can't tell which). But it also has joined Apple in fighting the apparent FRAND abuse, having formally lent its support to Apple in the E.U.'s deliberations over possible FRAND changes to reduce the possibility of abuse. Cisco Systems has also supported Apple in fighting Google's, shall we say, unusual approach to FRAND.

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