One week ago, the ITC ordered an import ban against HTC Android phones implementing a "data tapping" patent. This morning, the Boston Globe's Hiawatha Bray explains the Android patent situation and accurately notes this:
"The result: a series of small, but significant limitations on the functions of Android phones."
Now look at the following paragraph:
"HTC has said it will comply with the ruling by eliminating the feature from its phones. But a Google official, speaking on background, said his company has no immediate plans to drop the feature from its Android software."
To be fair, Google didn't rule out removing the feature further down the road. It just said that it had "no immediate plans". Maybe Google is going to remove it as soon as it's clear that HTC won't appeal the ITC decision to the Court of Appeals Federal Circuit, or in case there is an appeal but the CAFC doesn't stay the import ban. It could take a couple of months to find out. By downplaying the importance of the data tapping feature as "actually quite rarely used", HTC has greatly reduced the likelihood of a stay. To argue successfully for a stay, HTC would want to stress irreparable harm. Be that as it may, I give Google the benefit of the doubt that the ITC import ban may be stayed before it even starts to take effect.
That said, with more and more Android-related patent rulings coming in and coming up all the time (usually against device makers), it's time that Google clarified -- to its device makers, to the Android developer and user community, to the world of finance, and to the general public -- its policy relating to features that a court (or quasi-judicial agency) of competent jurisdiction holds to infringe a valid, enforceable patent.
I believe everyone will agree that Google's related policy must
ensure a level playing field between Android device makers,
guide them around legal pitfalls with potentially very costly consequences, and
vigorously defend the common interests of the Android ecosystem by exhausting all opportunities for appeals, but
as a matter of good citizenship (also known as "corporate social responsibility") respect the law and the institutions tasked with interpreting and enforcing it.
You know, "don't be evil".
There is certainly an international dimension here. A patent can always be enforced with respect to only one jurisdiction at a time. If a court in the Netherlands orders Samsung to modify its photo gallery (as it happened a few months ago), the related feature doesn't have to be modified or removed everywhere else on this planet. In that case, it was only a preliminary injunction anyway (resulting from a fast-track proceeding), but what I just said would apply to a final ruling. Still, if a feature is unlawful in a given jurisdiction, Google must accept responsibility for the situation in that country. And in the particular case of the United States, the country in which Google is based and Android is published, Google has full responsibility.
It's highly problematic if Google continues to publish Android versions including the linkify library (which infringes Apple's "data tapping" patent) regardless of the ITC decision. Here are the most important implications (the order is arbitrary):
If the ban isn't stayed by the Federal Circuit, it will formally affect only HTC's products. Apple would have to sue other Android device makers separately to get to the same patent. It is asserting that patent against Motorola in a federal lawsuit but not yet against Samsung. And besides the big three Android device makers, there are countless others. HTC would have to pay the price for being the first one to be sued by Apple over that patent. If I were a US-based consumer, I would certainly take note of the fact that HTC lacks a feature that I, for my part, use quite frequently (though it doesn't work well for non-US phone numbers).
Google publishes the related Android code under the Apache Software License 2.0. Its Section 8 contains a wholesale disclaimer of liability, but liability is not disclaimed if "required by applicable law (such as deliberate and grossly negligent acts)" (emphasis mine). After the ITC decision (and as evidenced by the statement Google gave to the Boston Globe), there cannot be any reasonable doubt about this being a case of deliberate infringement of a U.S. patent. Therefore, the downstream (device makers and app developers using the related code) could try to hold Google fully liable, arguing that willful patent infringement cannot be disclaimed. If a court found that it can be disclaimed, then Google doesn't have to pay, but it would irresponsibly expose to the risk of patent infringement liability anyone downloading and using or redistributing the infringing Android code, including app developers using the linkify library in their works.
Willful infringement results in triple damages under U.S. patent law. It would make a lot of sense for Apple to sue Google at some point (maybe much later) on that basis over this patent. In any settlement negotiations, that could be another valuable bargaining chip.
Violating Apple's intellectual property even after a formal ruling (by a quasi-judicial agency that makes things much harder for mobile patent holders than most other courts) is another way for Google to raise hackles at Apple. Additionally or alternatively to suing Google over this patent, Apple could also file an ITC complaint over just that one patent against, for example, a dozen Android device makers at the same time.
I think Google should also think about the implications of this for the way it's perceived by the ITC -- the same ITC that Google seeks to lobby for weak remedies.
In a formal sense, an ITC ruling against HTC only relates to HTC, as I explained. But its institutional raison d'être is to prevent market distortions resulting from unfair (in the sense of "infringing") imports from all companies. If the ITC holds a patent valid and infringed by Android but Google keeps publishing software (in the United States, in fact) that results in ever more infringing products being imported, Google effectively torpedoes the work that the ITC is doing.
Google can't shrug off these serious issues merely by pointing to Android's "open source" nature (which is more than debatable as everyone in the industry knows). Open source licenses may not be amenable to the idea of restricting the availability of certain segments of the code to those jurisdicitons in which they haven't been declared unlawful. But most Android device makers enter into license agreements with Google -- otherwise there's no way they would be allowed to use the Android and Google trademarks. Under such licensing arrangements, Google already imposes a variety of restrictions on Android device makers as far as modifications to the Android codebase are concerned. In this context, Google could certainly ensure that, for example, a licensed Android OEM like HTC doesn't have to compete with dozens of other licensed ones who implement an unlawful feature only because they have not yet been formally hit by a ruling.
Google has some explaining to do here. I have repeatedly criticized Google's attitude toward other companies' intellectual property (most recently in quotes I provided to the Christmas Eve edition of The Telegraph), but I want to be constructive. I have outlined the above criteria because I believe that all Android OEMs, app developers and users -- and many other entities and people -- have a right to know what Google is going to do now.
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