Friday, December 20, 2013

Latest move in Google's erratic patent strategy: upgraded Open Invention Network membership

On Wednesday the Open Invention Network (OIN) and Google announced that Google's OIN membership was upgraded from Associate Member to Full Member. The OIN was founded eight years ago by companies including IBM and Red Hat with the stated goal of protecting Linux from patent assertions and after all these years still hasn't delivered a verifiable proof of concept. There are two ways in which it could have delivered such proof:

  • It could have announced a license deal with a company that previously asserted and then, as a result of the conclusion of that agreement, abandoned patent assertions and royalty demands involving Linux.

  • It could have given patents to a target of Linux-related patent assertions for the purpose of countersuing a plaintiff, who would then (if OIN's patents were strong) agreed to drop its infringement claims.

Neither of the above has happened to date, and I doubt it ever will. The closest thing to a success story that I heard from people defending the OIN approach is that the organization gave four patents to Salesforce in 2010, three of which were asserted against Microsoft. But the announcement of the Microsoft-Salesforce settlement made clear that Salesforce accepted to pay. OIN's supporters claim that Salesforce got a better deal thanks to OIN's support, but this is not a verifiable success story and I doubt it: until that point, a few other Microsoft patent disputes in which OIN was not involved at all were settled similarly quickly. (Nowadays defendants are more inclined to defend themselves for years on end, but not back then.)

Microsoft has struck many hundreds of patent license deals since the OIN was founded, and many of them relate to Linux (with or without Android on top of it) and involve large and sophisticated licensees. There's no sign of the OIN having complicated Microsoft's award-winning patent licensing efforts.

Google's decision to step up its commitment to OIN comes as no surprise. Last year the OIN added Android technologies such as the Dalvik virtual machine to its list of covered technologies. And Google likes to make patent-related announcements that actually don't change anything, typically in an open source context.

Google's real strength is to defend itself against infringement allegations and to strike down patents through invalidity challenges, though this doesn't always work (Apple has already defended a couple of key patents against attacks in which Google likely had a hand).

Any attempts by Google to bring or threaten with offensive counterclaims against others have been pathetically unsuccessful so far. It currently has zero enforceable patent injunctions in place over Motorola Mobility's patents worldwide.

Google is also playing the political card and pushing for patent reform, but at this juncture it appears that U.S. Congress won't change patent law in any way that would enable Google to get away with Android's infringement. There will be some limited and targeted changes, and those may very well happen in 2014 -- but no game-changer for disputes between large players. Google has not made any headway in terms of making U.S. lawmakers believe that the patent system is not a major innovation engine.

It's really impossible to see any tangible benefit Google is going to get out of its upgraded OIN membership with respect to the problems it currently faces. The OIN "protects" Dalvik, but Oracle left the OIN a while ago and is currently not pursuing patent but copyright claims against Android (and it's now on the winning track based on the positions taken by three Federal Circuit judges at an appellate hearing earlier this month). Microsoft already has pretty much all major Android device makers signed up as paying licensees. Apple's patent infringement claims are mostly in areas the OIN doesn't even cover -- and if the OIN had wanted to stop Apple from suing Android device makers, it would have had almost four years now (counting from Apple's first lawsuit against HTC in March 2010) to do so. And there's Nokia (in other news today, Nokia is suing HTC over Google Maps and Google Navigation). The OIN can't change anything about Nokia's patent monetization and litigation.

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