Android in the cross-hairs: if you can't compete with it, litigate it

Summary:Android's success in the mobile industry by smartphone handset manufacturers has attracted litigation by industry rivals due to their own failure to compete in the legitimate open marketplace.

Android's success in the mobile industry by smartphone handset manufacturers has attracted litigation from industry rivals due to their own failure to compete in the legitimate open marketplace.

How do you know when you've finally become successful in any particular business?

Because everyone wants to sue you. Or rather, everyone who couldn't become successful on their own merits wants to sue you, or is so fearful of losing their market position from legitimate competition that the only choice ends up being to throw legal roadblocks in their opponent's way.

Also Read: Oracle Sues Google, Looking for a Piece of the Mobile Pie (August 2010)

Also Read: Apple HTC Lawsuit, If I Can't Get My Nexus One... (March 2010)

Last week, Android got itself in the legal cross-hairs (for the third time this year and the second time by proxy) when Microsoft filed suit against Motorola, the manufacturer of some of the most popular Android smartphones for patent violation, specifically:

a range of functionality embodied in Motorola’s Android smartphone devices that are essential to the smartphone user experience, including synchronizing email, calendars and contacts, scheduling meetings, and notifying applications of changes in signal strength and battery power

Now, let's be perfectly clear on this one -- while the company has added hundreds of new APIs to Android for use in its phones, Motorola didn't design or implement the specific functionality in Android that Microsoft is getting its panties all wound up in a knot over, Google did.

In particular, we're talking about the Exchange/ActiveSync messaging and calendaring synchronization capabilities within the Android OS. As to the battery power and signal strength application notifications, I'm pretty sure there is prior art in that one which other companies can claim, so that one is a red herring.

But let's not beat around the bush. Microsoft (and Apple, and Oracle) is attacking Android because it is too successful, and specifically Motorola because in under a year it has sold millions of units through Verizon and other carrier partners worldwide what is almost certainly now the most well-known brand of Android smartphone in the world: DROID. And now the DROID 2 and DROID X appear poised to repeat that success.

And while the original Motorola DROID was the first Android smartphone to use the ActiveSync functionality improvements in version 2.x of the OS, the DROID and Motorola is not the only handset OEM to use them -- many, if not all of them do, including HTC, LG Electronics and Samsung.

Should it surprise you that HTC, LG Electronics and Samsung have all committed to making Windows 7 Phones while Motorola hasn't? And none of them are about to be sued?

Microsoft knows it is about to face a massive uphill battle in the mobile phone market with its debut of Windows 7 Phone which is due for release on two initial carriers in the US next week, AT&T and T-Mobile on October 11.

The new mobile OS will be competing for attention with Android in the top spot with approximately 34 percent of the market, RIM's BlackBerry in second with 32 percent, and and Apple's iPhone in third with 21 percent -- with the two others closing in on RIM's share very quickly, according to recent reports from NPD and Nielsen.

Microsoft may very well have a legitimate patent/IP issue with Motorola (an issue that I'll address in a moment) but in terms of suffering damages in terms of Windows Mobile's share of the marketplace, it did to itself by virtue of not being able to create compelling and reliable mobile products.

In doing so it lost several of its traditional OEM partners, such as Hewlett-Packard, who decided it was best to build and market phones its own OS with its purchase of Palm (Which has an ActiveSync license for WebOS, so HP won't be getting sued by Microsoft anytime soon) rather than continue on with its Windows Mobile-powered iPAQ line of PDAs and phones, most of which were outsourced to HTC.

All of this Windows Mobile decline happened years before Android became a valid player in the smartphone ecosystem.

So what were Microsoft's options? It could compete legitimately on its own merits, and aggressively market products that people actually wanted to buy. Or it could try to throw as many legal roadblocks against its competitors as they could. It sounds like they are going to try a little bit of both.

Also Read: Microsoft, Your Mobile Focus Needs More Focus (July 2010)

Also Read: Smartphone Evolution 2.0, Who's the Biggest Loser? (February 2010)

Also Read: In Smartphone Wars, Darwinism Triumphs Over Intelligent Design (November 2009)

Now, all of that being said, I'm going to put my reputation and Open Source street creds on the line and say that I believe Microsoft's complaints against Motorola, as badly intentioned and formulated as they are may have some merit, and as a result Google probably needs to find another way around the Exchange issue or more broadly cover its handset OEMs in terms of patent indemnification from Microsoft.

How could Google do that? Through some sort of new enterprise gateway product/virtual appliance on the server side for Android like RIM does with BlackBerry Enterprise Server or perhaps some new Cloud offering to migrate current enterprises or small and medium-sized businesses using Exchange today to native GMail. Or pay Microsoft more money to cover the ActiveSync patents more broadly for all of its OEMs. My recommendation would be for Google to do both.

As it stands today, Google has licensed ActiveSync from Microsoft for use in Android as well as on its GMail servers (which is why Microsoft isn't suing Google directly) but almost every Android OEM (HTC, Samsung, Sony Ericsson and Dell included) have by virtue of legal pressuring from Microsoft licensed ActiveSync for use in their individual Android handsets as well.

Motorola, conspicuously is the only major hold-out from Microsoft's double-dipping.

Also Read: Attacking RIM's Enterprise Beachhead, What iPhone & Android Need to Achieve Victory (August 2010)

While I believe that Google will eventually have to deal with Microsoft and more broadly license the ActiveSync technology for use in their products and further indemnify its OEMs -- and Motorola could probably escape further torture by Redmond by agreeing to build Windows 7 Phones like HTC, LG and Samsung, I don't think this litigation is going to help Microsoft win any battles with consumers and enterprise users.

At the end of the day, you either build compelling products people and companies want to buy, or you don't. Microsoft might very well force Motorola into licensing compliance, but that victory would almost certainly be Pyrrhic.

Just because you can throw the Windows 7 Phone OS onto nearly identical DROID-like hardware doesn't mean consumers and enterprises will necessarily buy them when faced with other alternatives from Motorola and its competitors.

Consumers and enterprise users are buying Android phones from Motorola, HTC, LG and Samsung in the millions because these devices have the combination of hardware and software features that they want as well as the apps that they want to run on them.

So although the software looks promising, Windows 7 Phone hasn't proven itself yet. And the market already has chosen its top 3 platforms -- Google's Android, RIM's BlackBerry OS, and Apple's iOS.

With their previous generation of Windows Mobile phones, Microsoft clearly failed and lost sight of what products the industry demanded. Instead, Google, RIM and Apple managed to figure out what customers wanted. Notwithstanding ActiveSync licensing by any of these companies, that's really the bottom line.

Does Microsoft have a legitimate complaint with Motorola or is it just sore that it spent years dropping the ball with Windows Mobile? Talk Back and Let Me Know.

Topics: Enterprise Software, Android, CXO, Google, Legal

About

Jason Perlow, Sr. Technology Editor at ZDNet is a technologist with over two decades of experience with integrating large heterogeneous multi-vendor computing environments in Fortune 500 companies. Jason is currently a Partner Technology Strategist with Microsoft Corp. His expressed views do not necessarily represent those of his employer... Full Bio

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