After Apple and Samsung declared a truce in all countries except the U.S., where they have also narrowed their dispute considerably through recent procedural moves (1, 2), it's clearer than ever that patents won't stop Android (or even just slow it down).
Was this foreseeable all along? Did Google know that after years of litigation, Steve Jobs's "thermonuclear war" would end in a stalemate?
Three years ago at about this time of the year, Google acquired Motorola Mobility, and it wouldn't have spent $12.5 billion on that company if it had not seen a need to acquire patents to defend Android. It also acquired patents from other sources. In late July 2011, when Google's purchase of more than 1,000 patents from IBM became known, a Google spokesman told the Los Angeles Times and other media in an emailed statement:
"Bad software patent litigation is a wasteful war that no one will win."
What looked like an exhortation to hold out, directed at the Android ecosystem, appears amazingly foresightful from today's perspective. No one has won the smartphone (software) patent wars after all those years. The most active litigant, Apple, has already backed out for the most part.
I just wish to clarify that the first part of Google's statement can't necessarily be interpreted as saying that all software patents are bad. Google most likely meant that the ones asserted against Android were bad. That's also what Google's chief legal officer David Drummond said in a corporate blog post ("When patents attack Android") at around the same time:
"[...] Android's success has yielded [...] a hostile, organized campaign against Android by Microsoft, Oracle, Apple and other companies, waged through bogus patents."
I disagreed then and disagree now with the claim that this was an "organized campaign" because those three companies pursued rather different objectives. Even if one argued that Microsoft and Apple have in common that they build rival platforms (and are shareholders of the Rockstar Consortium, though not necessarily responsible for the Rockstar litigation mess to the same extent), Oracle would still be the "odd man out" on this list because it will literally love Android as soon as Google takes a Java license and wouldn't have anything to gain from damaging Android. For now, Google is trying to avoid this and preparing an appeal to the Supreme Court. Still, there's a pretty high likelihood of Oracle and Google ultimately becoming business partners, long before Apple will build its first Android phone (if it ever does, but its co-founder Steve Wozniak suggested so). By now (not at the time of Mr. Drummond's post), there's another factor that sets Oracle apart from the other litigants: its case is now exclusively a copyright case (its patent assertions didn't work out). At the end of this litigation, I expect Oracle to have way more leverage over Google than Apple ever had, but thanks to copyright, not patents -- and due to the fact that there was literal copying involved with respect to Java, as opposed to iOS.
This is not the time and place to go into more detail on whether Mr. Drummond was right that the patents asserted against Android were "bogus patents". For now I just want to recognize that Google was right that no one was able to win the smartphone patent wars. And that does say something about the quality of the patents asserted, but it's a more complex question why those assertions failed and what the litigation results tell us about patent quality -- I won't necessarily disagree with Mr. Drummond on "bogus patents" but I'd want to explain my position in more detail. I addressed some of the factors in a recent panel speech at a conference held at a German university, where I showed statistics of the extremely low rate of success of all major litigants (also including Nokia, by the way) and the absence of serious, lasting business impact of the few injunctions that were ever enforced, and plan to blog about it in the not too distant future. All I wanted to say at this point is that the smartphone software patent disputes between large players have so far (unless there's a complete surprise in the months or years ahead) turned out to have indeed been a wasteful war that no one has won. I hand it to Google that it accurately predicted this outcome in 2011.
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