Jul 202012

Oh that wily Google. As the proud new owners of balance sheet sucking wound Motorola Mobility Inc., Google has also inherited a company embroiled in a number of patent suits with Apple and Microsoft. To defend itself, MMI has been using a number of standards-essential patents, which is a laughably hypocritical tactic for Google to permit as champions of open source. Governments have not been blind to MMI’s Google’s bullshit; in both its home country and overseas, the company is being investigated for the practice of abusing FRAND patents.

So Google is taking heat for abusing patents they shouldn’t and their Android OEMs are getting slapped around the court system while Apple continues to accrue headshot patents for things Android is ripping off. What is Google to do? How about reframing the issue? How’s this sound: What if Apple’s popular, thoroughly-patented Multi-Touch technology was subject to standards-essential terms by virtue of its sheer popularity?

I shit you not: this is what Google’s Kent Walker tried to argue in a letter to the Senate Judiciary Committee. Walker’s letter, as quoted by AllThingsD:

While collaborative [Standards Setting Organizations (SSOs)] play an important part in the overall standard setting system, and are particularly prominent in industries such as telecommunications, they are not the only source of standards. Indeed, many of the same interoperability benefits that the FTC and others have touted in the SSO context also occur when one firm publishes information about an otherwise proprietary standard and other firms then independently decide (whether by choice or of necessity) to make complementary investments to support that standard in their products. … Because proprietary or de facto standards can have just as important effects on consumer welfare, the Committee’s concern regarding the abuse of SEPs should encompass them as well.

In other words:

…Google’s view is that just as there are patents that are standards essential, there are also patents that are commercially essential — patents that cover features that are so popular as to have become ubiquitous. The latter are just as ripe for abuse as the former, and withholding them is just as harmful to consumers and the competitive marketplace. Viewed through that lens, multitouch technology or slide-to-unlock might be treated the same way as an industry standard patent on, say, a smartphone radio.

You have got to be fucking kidding me, Kent.

Standards wouldn’t exist without fair terms for their use. If a company proposes a technology to be adopted as a standard, without the promise of licensing the technology fairly, reasonably and non-discriminatory, no one would agree to make it a standard. That’d be stupid. Once you accept the responsibility of licensing the technology on fair terms, you benefit from wider adoption and you’re allowed to be compensated for its use, but you’re not allow to extort adopters – well unless you count the dipshit injunction the Mannheim regional court granted Motorola Google against Microsoft in May.

Of course, you can choose not to make your technology a standard. You’re not likely to have a lot of people using your technology because that’s the fucking point. Apple wants to maintain a competitive advantage for the stuff it invented. If Apple wanted to make Multi-Touch a standard for all tablets, it would have proposed it as such.

The lack of respect for the intelligence of the Senate Judiciary Committee indicated by Walker’s comments is mind-blowing. By virtue of their hard work and conscious decision not to submit their technology to a standards body, Apple should still be made to adopt a standard’s terms because the fruits of that labor turned out to be commercially superior. The patents Apple has don’t work like that, Kent, as much as your rich fantasy life wishes it could be that way.

 Posted by at 8:44 pm

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