Patent holding company Rockstar has raised a ruckus by launching a major patent-infringement suit against Google and several Android OEMs, targeting—if you can believe this—search-related advertising. That's a big deal because it's targeting Google's corporate heart and soul, but it casts Apple—one of the owners of Rockstar—in the role of a patent troll, something that Apple itself has railed against.
This is not a black and white issue, by any stretch of the imagination, so let's look at the issues. The first thing is that Rockstar is the holding company formed from Rockstar Bidco—a consortium created by Apple, Microsoft, BlackBerry (then called Research In Motion (RIM)), Ericsson, and Sony—to bid on a massive treasure trove of patents being auctioned by defunct communications and networking giant Nortel.
Google also bid on those patents, and the face off between Google and Rockstar was quickly recognized as a proxy was for the broader smartphone market. The patents were always expected to fetch a pretty penny because of the smartphone patent wars that were well under way at the time, and in the end they did just that.
Rockstar Bidco ended up winning the auction with a final bid of US$4.5 billion. Google stopped its bidding at $4.4 billion, after having bid various nerdtacular figures like $∏ ($3.14159 billion), Brun’s constant ($1,902,160,540), and the Meissel-Mertens constant ($2,614,972,128). Knee-slappers, right?
That Was Then
That was more than two years ago, and it wasn't long after losing that bid that Google plowed $12.5 billion into buying Motorola Mobility. That was widely interpreted as a defensive move for Google, but the reality—as pointed out by John Gruber—is that Google put Motorola's patent trove to work pretty quickly.
Google—under Moto's name—launched a barrage of patent infringement lawsuits and regulatory claims against Apple and Microsoft (unrelated to each other) in venues throughout the world. Most of those have so far come to naught, making the purchase of Motorola a questionable one in my mind.
This Is Now
Today, it's Apple and Microsoft launching the infringement suit against Google and Android as a whole. According to Ars Technica, Google, Samsung, Asustek, HTC, Huawei, LG Electronics, Pantech, and ZTE were targeted with a family of seven patents, some of which deal with search-related advertising.
On the one hand, Android's success was built entirely on the back of Apple's innovations with iOS. As Steve Jobs said, Android is a "stolen product." I agree with that characterization, but some Android OEMs are worse. Samsung's deliberate efforts to copy Apple's patented innovations is foul, especially for those areas where Google steered clear of those innovations (think the "rubberband" patent).
Also stink-worthy is the fact that Google tried to use some of Motorola's standards-essential patents in its attacks on Apple. It was able to do so because "Motorola" asked for licensing terms that were deliberately onerous and outside of Moto's FRAND commitments. This was designed to get Apple to refuse to take that license so that Google/Motorola could sue for infringement. Samsung did the same thing.
To NPE or Not to NPE
In the middle of all this is the ongoing patent wars being waged by non-practicing entities (a.k.a. NPEs or patent trolls). These are companies that don't make anything, but instead buy patents and look for companies to sue.
Patent trolls have been vilified, and rightly so. Take Lodsys, the king of the patent trolls. This firm sues tiny companies for dollar amounts that are large enough to add up, but small enough to discourage a legal defense. The company is extra loathsome in that it runs away when companies do fight back because it doesn't want to risk losing a fight that could invalidate its patents.
The cost of doing business being exacted by patent trolls has gotten the attention of Congress, the Department of Justice, and the Federal Trade Commission (FTC)—everyone sees NPEs as the bad guys.
And that's the problem. Rockstar is an NPE, though an NPE owned by practicing entities (Apple, Microsoft, BlackBerry, etc.). Rockstar is independent from those companies, but at the end of the day it's an NPE owned by Apple and Microsoft.
And at the start of the next day, that means that Apple is part of the problem. To repeat what I said at the top, it's not black and white. Apple is clearly not an NPE, and Apple has historically used its non-SEPs to defend the enormous amount of innovating the company has spent billions of dollars inventing.
To date, Apple has been the victim of patent trolls, something that commentators and fans alike have often stressed. Now, Apple is merely another company using the rules of a broken system to strike at Android.
Good Guys and Bad Guys
OK, I don't really believe that last sentence. Lots of folks have wanted to paint Google as a victim, but Google is itself part of this same problem, and Android is the farthest thing in the world from an innocent bystander.
Google isn't the good guy here, but neither can Apple lay claim to that mantle. In fact, there are no good guys in this fight, and that's the part that sucks. It's hard to root for Apple in this fight when it is party to the same tactics that has rightly earned such condemnation when it comes to patent trolls.
About the best thing that can be said is that at least Rockstar is picking on a company its own size (as noted by John Gruber). It's not like Rockstar is suing little Android developers for $5,000 a pop hoping they won't fight back. Should that happen...
But Can Rockstar Win?
The question, of course, is whether or not Rockstar can win. There's a reason Nortel's patents went for so much, and these particular patents are a big part of it. The people I've talked to said that if the patent withstands a validity challenge, something characterized as a big "if," Google's very search business could be at risk.
Some further reading on this topic:
- Ars Technica - Patent war goes nuclear: Microsoft, Apple-owned “Rockstar” sues Google
- Daring Fireball: Rockstar, Patent-Holding Firm Partially Owned by Apple and Microsoft, Sues Google and Android Handset Makers
- Apple Outsider - Thermonuclear War
- The Loop - Google isn’t innocent in the patent wars
Image made with help from Shutterstock.