COULD ANDROID EVER DIE? PATENTS AND OPENNESS OVERWHELM

Google, Microsoft and Apple. Between the three companies the only company to have touted openness to an extreme length has been Google. How well they have actually kept to their promise is a different discussion altogether but if there’s one thing that is clear, Google has continued to remain weak in the patent war. Patents, an invention meant to help inventors, has in this time and age become somewhat of a joke due to weak governing laws and poor approval methods. The tradition these days is that some smaller company sets up a patent that seems obvious and then waits for enough of the big players to use the technology described in that patent before attempting to sue them. The reality is that the smaller companies will usually end up with a settlement in a get rich quick scheme. While the three companies have the legal muscle power needed to push away the small fries (most of the time) the fact remains that the giant with the weakest footing in the patent war is Google.

Why Google does not file for patents is a mystery at times. Maybe it is their philosophy about openness but whatever it is it hurts them when it comes to fights with the big players. In this case, Google may have met its match in the corporation led by the “blood thirsty” Larry Ellison, Oracle. Long story short, which most tech enthusiasts should know by now, is that Oracle, is aiming to kill Android in a patent war which started as a joke but as of one week ago, is starting to look deadly serious.

A little bit of history

With the acquiring of Sun, Oracle also obtained Java and all patents related to it. From that point onwards Oracle has continued to make fierce moves to stop or slow other independent open standards bodies such as Apache from pushing ahead with their own versions of Java. On the 12^thof August 2010 Oracle made out a press release in which it said,

“In developing Android, Google knowingly, directly, and repeatedly infringed Oracle’s Java-related intellectual property” an Oracle spokesperson said in a statement. ”This lawsuit seeks appropriate remedies for their infringement.”

The full copy of this lawsuit can be found here.

If you are not into reading a lengthy legal document or not all that familiar with the patent system, the essential breakdown of this was that Oracle believed that Google copied Java based logic and code verbatim into their Android Operating System code and thus knowingly infringed on their rights. What did Oracle want in return?

a)   For all copies and repositories of Android to be removed and usage to be discontinued to an acceptable point.
Read this again. What Oracle was demanding was for the use of Android to be halted by Google and any independent developers and all the hardware makers such as HTC, Motorola and Samsung.

b)   For all sections infringing upon Oracle patents to be destroyed with immediate effect
Read this again too. Oracle was gunning for patents which they believed Android infringed on in their Dalvik Virtual Machine. In layman’s terms Oracle wanted the code that executed the Android apps to be destroyed. 

c)   For revenues made by both Google and the Android handset makers to be paid in part  to Oracle as damages

At the time that this happened, many in the tech field disregarded the filing as ridiculous and just another patent war where the two companies would end up settling for a hefty amount outside court and the world would keep turning as it always had. Over 6 months later however documents were provided to court where Oracle submitted code from both the Java Virtual Machine and the Dalvik Virtual Machine which showed large sections of code being indeed used verbatim by Google. Google’s response was to say that much of that code was for testing and was executed by the Android OS to which Oracle responded by piling on more code for examination. After a dark period of silence from both parties, last week a document showed up online, a legal document from the courts regarding decisions on how much damages Google would have to pay if they lost the case.

From that week, things haven’t seemed all that funny anymore.

Oracle’s big request. Give us all of Google’s revenue from Android

The document released does not say it all since some areas of the it are blackened out, but there is enough information to extract the fact that one of the world’s leading authorities in this field assessed the legal implications of Oracle’s case and decided that all of Android’s revenue made by advertisements was to be handed over to Oracle as damages and future royalties. While Google is trying to fight this off it makes sense that part or whole of the revenue made from a product that infringes upon a patent is taken into consideration when negotiating relief. In this case Google’s only real method of revenue is their ad network and losing this would mean Android would turn around from being a profit maker to a cash cow to simply being an OS maintained by Google with no income to support it. The worst part is, every bit of the language in that document points towards the fact that Google is right now, on the losing side.

Google’s continuing worries

Unfortunately Google’s choice of not obtaining more patents continues to score blows against them. These blows may seem light in the face of a corporate giant but any lightweight boxer can tell you the accumulation of the damage from smaller blows can sometimes be more severe than any one punch knockout they could deliver. Microsoft in their attempts to bring handset makers over to WP7 more have constantly pushed the fact that although Android seems free, the lack of patent defense has many hidden costs. As if to prove the fact, Microsoft now obtains royalties from HTC (rumours say as much as 5 USD per device or more) while other handset makers are also being approached to pay up.

Last month a Texas based company called Lodsys moved against Apple developers claiming that their in app payment schemes were infringing on patents held by Lodysys. When Apple moved into the fray to defend their app developers, claiming the in app payment used patented technology by Apple, Lodsys backed down and instead shifted their focus onto the developers in Android who they claimed were also infringing on patents. So far the official outcome hasn’t been disclosed but in this case, the weakness of Google not having patented technology showed itself yet again. (Since then Lodsys has gone back to Apple claiming that its patents do not protect the developers which means that this will be an interesting case to watch in the near future)

It gets worse

Google’s openness allows developers to submit applications unchecked to the Android market. For the past month the Android market has found malware apps siphoning off user information to anonymous servers while also carrying code inside of them to allow the application to completely take over the phone. Just this week Google removed ten more malware apps masquerading under variations of names of popular apps within the market.

And that’s another problem. Piracy on Android is a bigger problem than it seems with a large number paid apps ending up on online app stores for free! This happens to Apple as well but in their case the need to root the phone to access these apps make it less appealing. In Android however users have the option by default to install apps from unverified sources once again highlighting a weakness of the open nature of Android

Back to Oracle vs Google. What now?

With just 5 months left to go and Oracle showing no sign of backing down into an out of court settlement it looks very much like Google could be on a pin here. If Google could win the war in all terms (both revenue and patent wise) then not only would the company be safe but it will have also gained a new found trust from its investors.

Due to the mounting number of issues within the Android eco system however the implications of Google losing this war are massive. It is my belief that Android could even be facing a “near death” blow within the next 5 to 7 months should this happen. Most people would scoff at the idea that Android with its current user base and growth could ever face a death blow from a patent war but in this case it is different. Even though no major product has died as a result of the patent war there is the saying that “there is always a first”

In part 2 of this tech rumble post I will break down my argument as to why I believe Android could very well be facing its closest to death experience and why even their dominating position in the market might not save them from it.

What is your take on this? Is Android actually in a tough position? More importantly, what do you believe the future may be if Oracle won in this patent battle? Any and all arguments will be taken into consideration for part 2 of this post which will appear this coming Monday on Tech Rumble.

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