Microsoft and HTC make love, not mobile war

The mobile phone wars have reached such a level of complication that the IPKat has resorted to drawing diagrams to show who is suing who. The schematic interestingly sees Apple and HTC at the heart of the recent battles (see previous posts here). However, recent news sees Microsoft getting into the mix. But Microsoft is seemingly making love not war after entering into a licensing agreement with HTC, the Taiwanese handset maker of Google's Android operating system. The licence apparently acknowledges Microsoft's broad "patent portfolio" claims over the technology associated with the Android mobile platform. HTC manufactures phones for Google, including the Nexus One, that use the Android technology and is currently embroiled in patent litigation brought by Apple in March. Some commentators have suggested that Apple's litigation against HTC was really directed towards Google.

The details of the licence, announced Tuesday, have not been disclosed save for this statement from Microsoft's vice president and head of IP and Licensing, Horacio Gutierrez who stated that:

“HTC and Microsoft have a long history of technical and commercial collaboration, and today’s agreement is an example of how industry leaders can reach commercial arrangements that address intellectual property. We are pleased to continue our collaboration with HTC.”
The long historical relationship referred to is that of HTC being one of the main producers of smartphones that run the Windows operating system.

If you, like the IPKat, are confused as to who owns what in these phones you are not alone. Gutierrez (left) writing in his blog last March stated that with all innovation, especially for inventions in nascent technology markets, there is a period of time where rights holders grapple and litigate in order to sort out who owns what. He

"The smartphone market is still in a nascent state; much innovation still lies ahead in this field. In all nascent technology markets, there is a period early where IP rights will be sorted out. This is particularly true in a market, such as smartphones, in which a number of different technologies previously offered on a standalone basis now converge into a single device. Indeed, smartphones are a product of the ‘open innovation’ paradigm – device manufacturers do not do all of their development in-house, but add their own innovations to those of others to create a product that users want. Open innovation is only possible through the licensing of third party IP rights, which ensures that those who develop the building blocks that make a new technology possible are properly compensated for their investments in research and development."

How will Microsoft and HTC's licensing agreement impact Apple's court and ITC complaints that claim HTC infringes 20 of Apple's patents in their Android phones? The blog-o-sphere is lighting up with conspiracy theories as to what has motivated the license deal. Some say that Microsoft believed that the Android technology infringed their patents, while others say that Microsoft is coming to the rescue of the patent-poor HTC in their battle against the Apple empire. This Kat believes the truth may lie somewhere in the middle of these two extremes.

Although the Android operating system is proving to be very popular in the market right now, if the IPKat was a mobile phone manufacturer she would not be raising her head above the parapet until the mess of IP ownership over this technology is untangled.

Today, HTC has introduced a new handset named the Incredible, based on Google's Android operating system.

For more information see these articles in the Financial Times, Seattle Post Intelligencer, Wall Street Journal and CNET.
Microsoft and HTC make love, not mobile war Microsoft and HTC make love, not mobile war Reviewed by Annsley Merelle Ward on Thursday, April 29, 2010 Rating: 5


  1. You may think this is making love, but it is all part of MS's greater war on linux. They have made numerous (intentionally) vague claims of IP infringment in the linux kernel (as used by Android) over the years and have used these to try and scare people into buying licenses from them. HTC are a large manufacturer of WinMo phones and don't have much of a patent portfolio themselves, and so are quite susceptible to pressure from MS. This is a win-win for MS: if HTC make a WinMo phone, they get paid, if they make an Android phone, they get royalties.
    Whether MS will go after Motorola (who have quite a healthy portfolio of patents pertaining to mobile technology which they could, potentially use against MS) for a license remains to be seen.

    *fumes* bloody sfotware patents...

  2. The whole software patent thing seems to thrive on uncertainty and the high cost of defending an infringement claim.

    Even the IPKats don't seem to be able to pick their way though this.

    I am at a loss to understand why this is good for innovation and understand entirely why it's good for lawyers.

    Thoughout the innovation value chain there will be a siren legal voice encouraging the innovator to support the lifestyle of lawyers and at the end of it all, might still not have the wherewithal to fund litigation (time, money resources, opportunity cost)

    Anecdotally I understand that the insurance industry would pursue a point of law to legal certainty on a cheap case, to provide certainty on expensive futures.

    This pursuit of certainty appears to be impossible in intellectual property matters, as the whole industry is geared towards promoting uncertainty. "Let us draft your claim in as broad terms as possible so as to prevade things you hadn't even dreamt of - it costs $4 million basic to defend against your claims, so they'll just give in". I recall a presentation from the soi-disant UKIPO implicitly promoting just that. The new EU patent "roll back" from over-claiming then provides an insurance policy. (What's wrong with "tough luck" to discourage the buccaneers?)

    Perhaps one of the Kats (or beagles) here could address this apparent systemic aberration?

  3. When I draft claims I write them as simple and broad in scope as possible; not in a belief that it will catch all technological progress later but rather to prevent others working around the patent by trivial modifications. This should be good for innovation since the applicant should be well protected by a patent that allows him to make money from his invention.

    I have experienced cases where competitors review the patents carfully to see how they can work around the claims, or, failing that, mask the infringement hoping not to be caught. For farmaceutical patents you should always expect the competition to put their best people on the case to see how to work around the patent you drafted the application for.

    While vague or wide scoped description is often useful, vague claims do not fare well in the EPO.

    Perhaps claims constructions vary more than I thought but I had the impression that claims construction is based on what the person skilled in the art would understand at the priority date, not in the present with perhaps 10 years of hindsight to lean on.

    There are some cultural aspects here too as I have notices applications from certain countries have very narrow independent claims where claim 1 can fill an entire page. Prosecution history in EPO is typically rather quick and painless for such cases but I am not sure the applicant is well served with such narrow scopes.

  4. Yeah, they make love as a secretary would make love with his boss for not being fired...


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