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Microsoft sues Motorola. Forgive me if I'm unimpressed.

The inevitable sequel to Microsoft licensing a variety of smartphone-related patents to HTC arrived today when Microsoft sued another vendor of Android phones, Motorola, over two handfuls of smartphone-related patents.

Yawn.

Sorry, I just can't work up much energy writing about patent ping-pong these days.

In this case, it's as difficult as ever to guess the validity of Microsoft's claims. Its news release and an accompanying blog post cite nine patents but provide only vague descriptions of them.

To judge from them, these patents, like many, appear to plug existing insights and innovations together. And if that combination could be considered obvious to somebody experienced in mobile-device design, these patents should not have been issued in the first place, as per an overdue Supreme Court ruling that in 2007 reaffirmed the patent system's doctrine of "non-obviousness."

The other weird thing about the lawsuit is not its claims made but its target, as that Microsoft blog post makes clear at the end. Motorola isn't the primary author of software on Android phones--Google is.

At some point, judges and juries will decide these matters. But the dubious history of tech-patent litigation suggests that we're a long way from then. Between possible countersuits from Motorola (everybody else does that in these circumstances, why not this company, too?), the inevitable requests for reexamination of some patents, and appeals of any verdicts, I would not be surprised to see Microsoft's suit still simmering away by the time I'm ready to upgrade from the Android phone I ordered nine months ago. So my advice to anybody worried about buying an Android device--or any new gadget, since just about anything can fall into a patent thicket these days--is not to panic.

Besides, companies routinely settle this kind of dispute by signing "cross-licensing agreements" that let them stick to their original plans. If that happens in this case, you, the customer, may see the resulting improvements in future smartphones:

  • Nothing.

    Well, you might pay a little more to cover the legal fees run up by everybody's intellectual-property lawyers. But that doesn't count as an "improvement" unless you're a patent attorney or you happen to sell goods or services to members of the patent bar.

    Would somebody now like to explain how these legal games "promote the Progress of Science and useful Arts," the Constitution's justification for giving Congress the power to grant temporary patent monopolies?

    Oh, wait... I should write something original in this post. Attentive readers will note that every paragraph above came, with slight modifications, from an earlier post about tech-patent lawsuits over just the past seven months.

    There was no need to rewrite those paragraphs, because the central truths of tech-patent lawsuits never change.

    Once again, we have a company responding to a competitor's success (they never seem to bother suing rivals that are already circling the drain) with litigation. Once again, it can't bother to cite the patents in question in its initial statements. Once again, it's suing a smaller company to try to send a message to a larger company.

    (6:17 p.m. See Cecilia Kang's post for more context about the recent history of smartphone patent suites and a PDF copy of Microsoft's filing. It specifies patents 5,579,517; 5,758,352; 6,621,746; 6,826,762; 6,909,910; 7,644,376; 5,664,133; 6,578,054; and 6,370,566.)

    The only thing that seems new about this suit is its timing. If Microsoft wanted to intimidate competing smartphone vendors out of adopting Android, it should have done this two years ago. Now--well after its old Windows Mobile operating system has rendered obsolete and irrelevant by the iPhone and Android--Microsoft's claim that "the Microsoft innovations at issue in this case help make smartphones 'smart' " will only look delusional to many smartphone owners. The suit appears as belated as Microsoft's decision to reboot its smartphone-software efforts with its upcoming Windows Phone 7 release.

    Okay, rant over. Now you can share your 2-cents worth in the comments.

  • By Rob Pegoraro  | October 1, 2010; 6:00 PM ET
    Categories:  Gripes, Mobile, Policy and politics  
    Save & Share:  Send E-mail   Facebook   Twitter   Digg   Yahoo Buzz   Del.icio.us   StumbleUpon   Technorati   Google Buzz   Previous: EA takes 'Taliban' out of Medal of Honor game
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    Comments

    Cheesy decisions, followed by cheesy marketing, followed by cheesy lawsuits. Maybe Microsoft is in the wrong business. While the real innovation happens elsewhere, all Microsoft can afford to do is use their platoon of lawyers to step in and stir up the dirt.

    Posted by: tgolamb | October 1, 2010 8:21 PM | Report abuse

    Virtually all the writing in the media about software patents is uninformed. This article is no exception. In the few public cases where there has been litigation about IBM's or Microsoft's patents, the suits have been quickly settled. Technology companies accumulate patents as a standard business practice. Both IBM and Microsoft have a large history of investment in R&D and a very large number of patents that have been accumulated as a result of that investment. Even the anarchists in the Free Software movement seem to have finally figured out that most dealings related to these patents are in private negotiations between two companies. But in the few cases, where IBM or Microsoft have had to resort to litigation, it has become clear that many of their patents will stand up in court.
    A second reality is that both IBM and Microsoft have not tried to use patents to enforce a monopoly. In case you have not noticed, IBM has had a large difficulty competing with a variety of computer hardware vendors that followed in its wake. If you doubt that those vendors received some benefit from IBM's creating the market for business computers, you are a fool. If you think that Linux would exist without the long history of Unix R&D, you are a fool. Patents may be a very imperfect way of encouraging R&D and the investment necessary to create a business out of an innovative product. But patents are the legal technique that has a history of acceptance and success. The computer industry in particular is distinguished by an unprecedented rate of innovation. It is only in the minds of those who are detached from reality that there is any history of patents stifling innovation in the software industry.

    Posted by: dnjake | October 2, 2010 12:16 PM | Report abuse

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