Friday, October 24, 2014

Here's a redacted version of Microsoft's Android/Chrome patent license agreement with Samsung

The Microsoft-Samsung contract dispute in the Southern District of New York over the implications of Microsoft's acquisition of Nokia's wireless device business for the parties' 2011 Android/Chrome patent license agreement has already exceeded my expectations concerning transparency. Three weeks ago this case brought to light that Samsung forked over more than a billion dollars in patent royalties on its Android/Chrome devices to Microsoft in the 12-month period from July 2012 to June 2013. Last week, a Samsung motion to compel arbitration explained certain interdependencies between the parties' Android/Chrome patent license agreement and a second contract, a Windows- and Windows Phone-related business collaboration agreement.

Here comes the latest and greatest revelation, which in certain respects is of even greater interest than the billion-dollar figure: yesterday, Samsung's counsel in the New York case had to file a public redacted version of the declaration supporting Samsung's motion for referral to arbitration, including the key exhibits--the patent license agreement and the business collaboration agreement.

The following PDF document contains the declaration and the redacted versions of the two contracts (this post continues below the document):

Redacted version of Microsoft's 2011 contracts with Samsung.pdf by Florian Mueller

These contracts are interesting from different angles. One of them is Samsung's motion to compel arbitration. At first sight (and I will have to look at it more closely and think about it some more) it does appear that the two contracts, both of which were concluded within a couple of months of each other, are indeed closely connected. The business collaboration agreement was signed first but already referred to credits (based on Samsung's success with Windows devices) against Android/Chrome-related license fees. Technically they both have the same date: July 1, 2011.

The aspect I found most interesting is all about exclusions. While the license agreement is not limited to a particular list of patents, it's no total-portfolio license either. There are two key limitations: "Excluded Technologies" and "Excluded Software" (any software licensed under an "Excluded License").

As for excluded technologies, Microsoft did not license to Samsung any of its patents relating to

  1. Kinect-style gesture-based functionality (this exclusion has nothing to do with touchscreen gesture control, as the contract clarifies),

  2. Virtual Reality, and

  3. "Information Worker Software": a software or a service "designed or offered as a replacement" of Microsoft's office applications, with OpenOffice and LibreOffice being specifically mentioned as replacements for one or more Office components.

The definition of "Excluded License" includes any version of the GPL, LGPL, Mozilla Public License, and Common Public License, or similar licenses with a copyleft (share-alike) feature. This exclusion, however, relates only to "Other Samsung Products" and not to Samsung's Android and Chrome devices, where the only excluded license is the GPLv3. In other words, the license agreement does cover the GPLv2 parts of Android, such as the GNU operating system and the Linux kernel. This might spark some debate in Free Software circles. It also reminds me of what I said four years ago when there was a debate raging in Europe over "open standards" and the compatibility of free and open source software with FRAND (fair, reasonable and non-discriminatory) licensing terms. I said that patent royalties are paid on free and open source software, including GPLv2 software such as Linux, all the time, also by such companies as Red Hat. The now-public terms of the Microsoft-Samsung patent license agreement are another example.

Besides the actual exclusions I mentioned, there's also a mechanism in the contract that can lead to the exclusion of a category of devices. There are special rules in the contract for a "Deferred Android Device," defined as "an Android/Chrome Device that (a) does not have voice communication as a primary functionality, (b) has web browsing as a primary functionality and (c) has a display screen no larger than 6.25 inches across its diagonal." For such devices, the contract requires the parties to take certain steps for the purpose of agreeing on a license fee on such a device, but if the parties couldn't agree on a fee, then such devices would just not be covered by the license agreement.

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