Microsoft has just announced its biggest ever Android-related patent deal with Samsung. In this contract, Microsoft will get a royalty payment on every Android smartphone and tablet that Samsung sells. And, what exactly is Samsung paying for and how much are they actually paying? We don‚Äôt know.
Horacio Gutierrez, vice president of Intellectual Property and Licensing at Microsoft, smiling all the way to the bank, said in a statement that ‚ÄúWe are always looking for new opportunities to work collaboratively within the industry, and Samsung was a natural fit, particularly because of its leadership in the rapidly changing world of digital media technologies. That‚Äôs another way of saying that Microsoft has managed to scare yet another company into paying them off for some unknown and untested patents.
On Twitter, Brad Smith, Microsoft‚Äôs general counsel, triumphantly tweeted, ‚ÄúToday‚Äôs agreement demonstrates we now have a clear path forward for resolving the industry‚Äôs mobile patent issues‚Äù and ‚ÄúWhile we haven‚Äôt yet reached the beginning of the end of mobile patent issues, perhaps we have now reached the end of the beginning.‚Äù So, yeah, if you‚Äôre idea of a clear path ahead is to pay off Microsoft, and other major companies like Apple, than we indeed have a way forward.
Microsoft is on a winning streak with this strategy. Casio and numerous other companies that use Linux in their hardware have paid off rather than face a Microsoft lawsuit. While Microsoft has claimed for years that Linux violates over 200 of the company‚Äôs patents, Microsoft has also never said what these patents were.
In addition, the author of the study, Dan Ravicher, head of the Public Patent Foundation that Microsoft first cited as the source for its claims back in 2004 said at the time that ‚ÄúMicrosoft is up to its usual FUD [fear, uncertainty and doubt].‚Äù
Ravicher continued, ‚ÄúOpen source faces no more, if not less, legal risk than proprietary software. The market needs to understand that the study Microsoft is citing actually proves the opposite of what they claim it does. There is no reason to believe that GNU/Linux has any greater risk of infringing patents than Windows, Unix-based or any other functionally similar operating system. Why? Because patents are infringed by specific structures that accomplish specific functionality,‚Äù
In other words, ‚ÄúThe bottom line is there‚Äôs no reason to believe that Windows, Solaris, AIX or any other functionally similar operating system has any less risk of infringing patents than Linux does.‚Äù
So why since to this very day Microsoft refuses to say what patents are being violated or how, why are companies paying off Microsoft?
First, Amanda McPherson, vice president of marketing and developer programs at The Linux Foundation, points out that you need to keep in mind that, ‚ÄúPatent licensing agreements are done every day in this industry. Unfortunately, this is business as usual. It‚Äôs not surprising that in these cases, in particular, one of the parties is choosing to publicize them.‚Äù In other words, it‚Äôs business as usual, but in the interest of anti-Linux FUD, Microsoft wants to frighten companies.
Andrew ‚ÄòAndy‚Äô Updegrove, a founding partner of Gesmer Updegrove, a top technology law firm, observed, ‚ÄúI think that there are a few things to focus on when you read such an announcement:
- Was it a Linux only license? Note that in this case, Linux was only one element of the deal. The Linux only deals are sometimes between Microsoft and small companies that have little to gain by litigation
- Was it a one way license, or a cross license as well? If it‚Äôs a cross license, then the importance – or validity – of the Linux elements may be low as it‚Äôs part of a larger package, perhaps one that covers all of the patents of both parties
- And finally, as always, note that the terms are never revealed, so the amount of money that that may be changing hands may not only be low or high, but may also be calculated primarily on the basis of other patents besides the Linux-relevant ones.
And, indeed the Samsung deal is not Linux only, it is a cross-license contract, and the terms, as usual, are a mystery.
Today Ravicher looks at such deals as the Casio and Samsung contracts and simply says, U ‚ÄúDon‚Äôt know who rolled over, as we don‚Äôt know how much was paid. Other than that, this is not a new phenomenon. MS doesn‚Äôt make good products any more, so all it can do is try to leech of those that do.‚Äù
So why are companies going along with this? According to the experts, it‚Äôs because it‚Äôs cheaper to pay off Microsoft than to fight them. For what might be a nominal fee, Samsung and other companies avoid wasting years of time and money in court fighting them.
Patent lawsuits are all about money and control. Unless you‚Äôre Oracle trying to monetize Java at Google‚Äôs expense to the tune of a billion plus or Apple trying to kill off competition, companies can find it cheaper to pay off a patent attacker. After all, even Google would be happy to pay off Oracle‚Ä¶ if Larry Ellison, Oracle‚Äôs CEO, came down to a more reasonable 100-million or so.
In the end, the bottom line is that Microsoft is trying to get what money it can from Android and Linux vendors while trying to scare users off using the platform. Thanks to these patent deals and the endless mobile software patent lawsuit wars, we‚Äôll all end up paying more for my smartphones and tablets. After all, no matter who pays whom, in the end we, the people, are the ones who really end up paying for all these pointless patent licensing agreements and litigation.
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