Just three weeks after Microsoft announced its patent infringement action against Motorola, a leading maker of smartcard and other digital security technologies named Gemalto contributed another lawsuit to the crossfire of patents in which Android is caught.
With Apple's suit against HTC (started in March), Oracle's suit against Google (August) and this month's two suits, Android is now already facing four major patent infringement suits (not even counting cases that target multiple platforms, such as NTP's patent suit over wireless email). I assumed three weeks ago that "some further escalation is more likely than not to occur unless Google alters course."
While that prediction has already panned out pretty quickly, I think there's still more to come. The intervals between those Android suits have become shorter and shorter: five months, six weeks, three weeks. Since we're talking about a small sample from a statistical point of view, I wouldn't necessarily extrapolate that curve. But it sure looks like asserting patents against Android is now quite en vogue.
While Apple and Microsoft filed suits against manufacturers of Android-based products, Oracle went after Google directly but has (not yet) sued any device makers. Gemalto goes after all of them at the same time by suing Google as well as the three leading manufacturers of Android phones: HTC, Samsung and Motorola (in order of second-quarter market share).
Multi-defendant patent suits happen all the time. The aforementioned NTP suit over wireless email also targets Google as well as some smartphone manufacturers, plus other companies (half a dozen in total). Paul Allen's Interval Licensing is simultaneously suing 11 major players.
If you hold a patent that reads on Android, you can sue at multiple levels. Google is the source of it all. You can also go after Google's downstream, where you find the manufacturers of Android-based devices. Theoretically, you could go even further downstream and sue importers, distributors, retailers, or users. Patent law gives you all of those choices.
Of course, you will ultimately determine what's the most efficient way, and you'll take existing or potential business relationships into account. For an example, most major smartphone vendors are probably Oracle database customers, and Microsoft's preferred way to do business with hardware companies is to sell them Windows OEM licenses as opposed to suing them over patents.
Gemalto is a reasonably sizable player with annual revenues of approximately $2 billion and 10,000 employees in 40 countries. No one will doubt that it can afford this fight. But it's obviously not an Apple, Microsoft or Oracle. Such powerful organizations can send out a warning to an entire market if they sue even one infringer. Suing four behemoths at once may be a strategy for Gemalto to demonstrate confidence in its case and to be taken seriously by everyone in the market.
There's one item in Gemalto's complaint that struck me as very important:
25. Android Applications and the development of such applications using the Android SDK infringe one or more claims of the Patents-in-Suit.
Let's assume for the sake of the argument that Gemalto is right about this. This would mean that all Android application developers are infringers and that all Android apps are infringing (therefore, illegal) material.
Still assuming that Gemalto is right, they could theoretically sue any app developers they choose to go after. They could shut down any or all apps. They could put a big "closed due to patent infringement" sign in front of the Android Market app store.
The same would probably also be true should Dalvik infringe Oracle's Java patents. However, Oracle's complaint didn't make such an explicit claim against the entire Android app developer community. Oracle instead focused on Google's alleged wrongdoing.
I don't think it's likely that Gemalto will actually sue Android app developers, and if it did so, it would likely go after large players (where there's money to be made) rather than little guys. Gemalto has apparently chosen its four initial targets and will try to work out a license deal with Google and the manufacturers of Android-based devices. But just the notion that you have a holder of three Java-related patents who tells a court what I just quoted and analyzed is frightening.
Even though they probably won't be sued, Android application developers may find themselves severely affected by Gemalto's infringement action. Gemalto's complaints talks about the Android Market (Google's app store). Assuming that Gemalto wants a percentage of all revenues generated with Android apps, that would ultimately cost app developers money. Google might reduce the percentage it pays to developers. This could also result in higher app prices, which would reduce volume. Or we could see a combination of those effects.
It's not just Gemalto who might want a cut of the app business. There's also Oracle, whose intentions are unclear so far. And who knows how many other patent holders might come out of the woodwork later.
One might argue that this could happen to app developers on other platforms. However, it's pretty clear now that Android is under attack to a far greater extent than any other system. If someone wanted to cash in on an app market, Apple's App Store would be an even more obvious target than the Android Market. But for a variety of reasons that I'll analyze in more detail on another occasion, Google doesn't have the Android patent situation under control in any way. Apple and Microsoft generally appear to resolve such issues through license deals.
Google exposes an entire ecosystem -- including app developers -- to enormous risk. That's irresponsible.
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