Microsoft has concluded dozens of license agreements with Android device makers, and relative to the number of license agreements doesn't sue very often, but from time to time it does happen. Yesterday, Microsoft filed this complaint here against Kyocera over seven patents allegedly infringed by its Android-based devices (this post continues below the document):
This makes Kyocera the third Android device maker to be sued by Microsoft over allegations of patent infringement. The first ones were Motorola on October 1, 2010 (that dispute is still ongoing with no signs at this stage of Motorola coming under serious pressure to take a license) and Barnes & Noble in early 2011, a dispute that was settled prior to any formal ruling (an ITC staff recommendation had, however, been negative on Microsoft's asserted patents). Last year Microsoft also sued Samsung, but that was a contract (as opposed to infringement) case, and it was settled recently (also before any ruling).
I guess Google will lend some support to Kyocera with respect to software patents that would be infringed by all Android devices should Microsoft's allegations be true.
I used to believe for a long time that Microsoft had a patent portfolio especially in connection with operating system technologies that would really enable it to win impactful sales bans against Linux-based (and, later, Android-based) devices. I was consistent about that
while I was working against Microsoft (as an anti-software-patent campaigner in Europe in 2004-2006),
while I was neutral with respect to Microsoft (the following years), and
while I was doing some work for Microsoft (a fact that I disclosed here in 2011 without any obligation to do so).
Similarly, I thought Apple would also hold patents that would give it leverage over Android. That's what Steve Jobs thought. We now know he was wrong, and I take comfort in having been in excellent company in that regard.
Last fall I published my analysis of what has so far come out of 222 smartphone patent assertions (most of them against Android devices, but also including some countersuits by Android device makers): very, very little, if anything. And Microsoft's hit rate, at the time, was no exception. (Thanks, belatedly, to ZDNet's Steven Vaughan-Nichols for sharing my related chart with his readers.)
Despite that track record (including all the frustration that it must mean to have been unable for about 4.5 years to force Motorola into an Android patent license agreement), Microsoft has decided to bring this suit against Kyocera. Apparently Microsoft wants to demonstrate that it is still prepared (even under its new, open-source-friendlier CEO) to take legal action against those who refuse to pay license fees on their Android-based devices. It may also believe that it still has some pretty good patents in its portfolio that it hasn't asserted before.
So let's look at the patents-in-suit:
U.S. PatentRE40,989 on "atomic operations on data structures"
U.S. Patent No. 7,137,117 on "dynamically variable idle time thread scheduling "
This is a typical operating system patent. Thread scheduling per se existed before this patent was filed, so the key validity question is going to be whether the addition of a "dynamically variable idle time" was new and inventive in June 2000. Interestingly, claim 4 of the patent specifically mentions "Linux" (as one of several operating systems).
U.S. Patent No. 7,289,102 on a "method and apparatus using multiple sensors in a device with a display"
This is a patent in the gray area between hardware and software patents. One might view it as a hardware patent but the signal processing it covers would most likely be implemented in software rather than circuity. I don't know whether Android internally performs the accelerometer-related operations the patent is all about.
U.S. Patent No. 6,349,344 on "combining multiple Java class files into a run-time image"
Obviously, Sun Microsystems didn't have a patent on filing patents related to Java, thus Microsoft was free to do so as well.
U.S. Patent No. 7,062,274 on "increasing the level of automation when establishing and managing network connections"
U.S. Patent No. 7,062,715 on "supplying notifications related to supply and consumption of user context data"
U.S. Patent No. 7,050,408 on "communicating multi-part messages between cellular devices using a standardized interface"
This is the U.S. equivalent of EP1304891, which the Federal Patent Court of Germany held invalid in a May 7, 2014 ruling (I attended the first few hours of the hearing, and when I left, the outcome was easy to predict). Microsoft appealed that decision to the Federal Court of Justice and apparently believes it can get a better outcome in the United States.
Microsoft stresses that this selection of patents (it obviously can't take Kyocera to court over hundreds of patents at the same time) demonstrates the "breadth" of the part of its portfolio that it alleges to be infringed by Android-based devices. No doubt about breadth, but how about strength? That's what this litigation will have to show as it unfolds, unless the parties settle before a decision comes down.
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