Android makers: Why not stick a 'sue me' sign on your back?

Summary:Considering the Microsoft-Motorola spat and assorted mobile technology patent suits flying around, is Android even a safe operating system for handset makers to use?

With all but every mobile manufacturer, from handset makers to Android providers, being sued left, right and center, one has to question whether Android is even a safe operating system to use for a handset builder -- at least in the current climate

The whole patent mess of companies suing others, with the exception of Microsoft and Apple playing nicely together, is convoluted, confusing and complex.

Simply put: Android is the common thorn in the side of many, at the moment.

Motorola is being sued by Microsoft for allegedly infringing over a dozen of its patents -- notably ActiveSync email synchronisation patents used in Android -- that Motorola does not have the rights to license.

Yet, Motorola is counter-suing Microsoft over patents that it also allegedly infringed.

To make matters even more confusing, Microsoft is suing Barnes & Noble over a different set Android patents, as part of Microsoft's battle against the Nook Color.

But Microsoft's war against Android falls short, as HTC and Amazon appear to be safe from lawsuits; at least until one or both slip up, and break the terms in their already-established agreements.

As you can see from the London Underground-like infographic below, nearly everybody is suing everyone else at some level, with HTC and Amazon clearly playing ball in Microsoft's eyes.

Since Microsoft already gets $5 for every HTC Android phone -- a full $150 million based on the 30 million handsets that HTC has already shipped -- Microsoft and HTC are clearly playing nicely.

Amazon have licensed patents belonging to Microsoft, and are thus paying a vast amount of money to use the patents that Microsoft owns. But the companies that Microsoft is suing, Motorola and Barnes & Noble, must have refused to license the patents.

The simple bottom line.

It's not as if Microsoft doesn't want Android makers to take out applications or protocols that infringed its patents -- it just wants money for them, like royalties.

But if the latter is true, and licenses are being deliberately circumvented, then why? Is it a matter of price, or a case of sheer defiance?

Who is suing who? Click to enlarge

Who is suing who? Click to enlarge

But the Motorola-Microsoft dispute is where a lot of the pressure lies. Whatever happens next could determine the outcome for many other lawsuits, in progress and to come.

Microsoft began making its case in a U.S. trade case, which threatens the outcome of Motorola Mobility's handsets.

The case centers on Android-based smartphones made by Motorola, with Microsoft arguing that the handset maker used seven patented technologies held by Microsoft.

The International Trade Commission, the court residing in this case, has the power to block the import of products that violate U.S. patents.

But, as Google bought out Motorola Mobility earlier this month for $12.5 billion -- partly to obtain patents that would make Motorola's battle also Google's -- Microsoft may now have to go up against an even bigger gun that Motorola.

The recent patent spat explosion reached a peak when Google and Microsoft exchanged angry messages in public over Twitter, for the entire world to see.

As far as I see it, there are three outcomes to the Motorola-Microsoft dispute, which would have a resounding effect on the remaining lawsuits and conflicts:

1. The International Trade Commission bans Motorola phones running Android.

Google tried to block key testimony by a Microsoft employee who allegedly saw propriety Android source code. But the judge ruled that only Microsoft or Motorola, as the two parties directly involved in the case could put forward such a request.

If Microsoft wins, the ITC judge could impose a ban on all affected Motorola phones, which would then by definition infringe Microsoft's patents. This would not only be bad news for Motorola, but others which infringe those patents.

Who wins: Microsoft, because it seals the deal for millions in license revenue.

2. Motorola could be forced to license patents owned by Microsoft

Granted, it isn't as bad as having its phones banned across the United States, a key market for Motorola, it would mean shelling out millions of dollars that it had not previously accounted for, leaving a black spot in the finances of the handset maker.

This would not only affect Motorola, but also Barnes & Noble, which is still being sued by Microsoft for infringing its patents in the Android-based Nook Color.

Who wins: Microsoft, again. It's starting to look like it can't lose.

3. Google intervenes and settles -- appeasing Microsoft as best it can

Let's not forget that Google acquired Motorola Mobility, effectively buying itself one hell of a fight with Microsoft over its patents it allegedly owns.

But while Google and Microsoft historically bicker over search and enterprise email, communications and the college space, where Office 365 and Google Apps directly compete, the two do not want an all-out fight.

Not again, that is. The two have 'mutually assured destruction', and nobody wants the two to explode.

Google will likely settle the case and appease Microsoft as best it can, by spending a ton of money and licensing its patents to use.

Who wins: Microsoft, and Google, in a way. Because even though Google has to shell out money it doesn't want to spend, it keeps its newly acquired handset business in business.

But there is one consideration to make -- now we are in a post-Jobs world.

As senior technology editor Jason Perlow considers, new Apple CEO Tim Cook has an entirely different ethos to the company he has been effectively running since January.

It could be that Apple subsequently drops the counter-lawsuits against major Android manufacturers, like HTC, Samsung and Motorola. By dropping the lawsuits, it would rebalance Apple back into a viable player on the mobile market, without others running afraid of being sued over what is basically a petty patent dispute.

But without Steve Jobs at the helm, the semi-paranoid, ego-driven company that Apple has effectively become could slowly peter out; regaining balance, and becoming a rehabilitated and valuable member of the technology community.

Related content:

Topics: Mobility, Android, Google, Hardware, Legal, Microsoft, Smartphones

About

Zack Whittaker writes for ZDNet, CNET, and CBS News. He is based in New York City.

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