Microsoft's Android tactics are 'hard bargaining' but not patent misuse

Microsoft's Android tactics are 'hard bargaining' but not patent misuse

Summary: Good news for Microsoft.

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TOPICS: Microsoft, Legal
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After Barnes & Noble lost a preliminary decision to Microsoft in their ongoing patent dispute, newly released legal documents -- first reported by Geekwire's Todd Bishop -- show how the judge felt about Microsoft's approach to getting Android device makers to pay up a royalty.

Administrative law judge for the U.S. International Trade Commission, Theodore Essex, said that Microsoft's negotiations with Barnes & Noble over the use of Android in the Nook were "certainly hard bargaining," but it wasn't patent misuse.

"Even assuming that these transactions and the related evidence establishes that Microsoft is bent on eliminating Android as a competitor, the mere fact that Microsoft is targeting Android for destruction is insufficient to establish an antitrust violation let alone patent misuse," he wrote.

Barnes & Noble claims that the way Microsoft approached Android patent licencing violated antitrust laws.

This is good news or Microsoft, who has patent agreements in place with makers of Android devices covering more than 70 percent of Android smartphones sold in the United States. And while Android isn't a particularly lucrative cash cow for Microsoft, currently only pulling in some $444 million a year, as the popularity of Android increases, so does the amount of cash that Microsoft pulls in thanks to the platform.

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Topics: Microsoft, Legal

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  • RE: Microsoft's Android tactics are 'hard bargaining' but not patent misuse

    I don't ever recall ms saying they wanted android destroyed. I do recall Jobs saying that.
    slickjim
    • RE: Microsoft's Android tactics are 'hard bargaining' but not patent misuse

      @Peter Perry Exactly, Microsoft uses its patents to make money from royalties. Apple uses its patents to remove competition. Which is better for the consumer?
      clcrockett
      • Msft isn't more right then Apple , their core business is different:

        @ccrockett@... <br><br>Msft has always sold licenses to OEMs to make products. So collecting from HTC , Barnes and Nobles etc fits right in like selling Windows licenses. <br><br>Apple's entire business is built differntly, it's selling hardware with their own software. It hurts apple a whole lot more if people steal their OS.<br><br>It's like a Bar doesn't care if you eat salty pretzels for free if you drink beer but a Pretzel Factory will be pissed if someone stole their pretzels to eat for free... <br>so the Pretzel factory protecting itself by prosecuting the thieves is bad for the consumer?<br><br>different businesses different M.O, saying Apple is worse than msft when their business operations are different is silly.<br><br>fact is from the numerous cases Android is facing and losing Jobs was right that Android was a stolen product (stolen from many different sources).
        Davewrite
      • RE: Microsoft's Android tactics are 'hard bargaining' but not patent misuse

        @Davewrite are you kidding me? Let me know when somebody steals Apple's OS because I haven't seen a clone of that dung yet!

        Now I realize that you'll claim it is Android stealing from Apple but that is just more of your ignorance. The way the 2 function couldn't be more opposite and lately, it has been Apple stealing the features from Android.
        slickjim
      • RE: Microsoft's Android tactics are 'hard bargaining' but not patent misuse

        @ccrockett@...

        The one that actually causes companies to innovate and not copy.
        dhmccoy
      • @Peter Perry Profit that post with 'Dung' references....

        is way out of my league to reply to.

        but since it's YOU, I will try (hopefully without gagging)

        here's the Google Phone prototype BEFORE they stole iPhone ideas:
        http://www.buygphone.org/?itemid=11


        ex Google engineer says Android is inferior even at the core level to iOS plus the reason they can't fix it is because Android was originally designed for keyboards and desperate radical changes were made when iPhone came out and blew it out of the water:

        techland TIME:
        "Remember when people blamed Androids laggy interface on optimization shortcomings? Everyone said the reason Androids UI sometimes felt sluggish was its lack of hardware acceleration. That was supposed to change with Honeycomb, the tablet-angled third iteration of Android OS that launched with the Motorola Xoom back in February. The only problem: Honeycomb didnt eliminate Android OSs tendency to lag when manipulating the UI.

        Why not? Because Google made some pretty big mistakes when first designing Android, argues Munn, mistakes that may be too significant and intrinsic to fix at this point. (Davewrite: that's because before iPhone they were working a completely different concept with KEYBOARD phones ... then the Mole Stole)

        The root cause, says Munn, is that on iOS all UI rendering occurs in a dedicated UI thread with real-time priority."

        Read more: http://techland.time.com/2011/12/07/is-android-doomed-to-lag-more-than-ios/#ixzz1mUBqpcSp

        as for stolen from other sources, fact is HTC etc already paying Msft:

        "Microsoft gets $5 for every HTC phone running Android, according to Citi analyst Walter Pritchard, who released a big report on Microsoft this morning.

        Microsoft is getting that money thanks to a patent settlement with HTC over intellectual property infringemt"

        http://articles.businessinsider.com/2011-05-27/tech/30077485_1_android-htc-tablet-market

        (the above ALONE shows android stolen but there's MORE: ....)
        also internal emails in Google (which Google tried and failed to exclude from Oracle court case) shows google was aware they needed a license but went ahead anyways without :

        google email
        "What weve actually been asked to do (by Larry and Sergey) is to investigate whattechnical alternatives exist to Java forAndroidandChrome. Weve been over a bunch of these, and think they all suck. We conclude that we need to negotiate a license for Javaunder the terms we need"

        but they DIDN'T and is now stuck in a big freaking case with Oracle.

        case is not over but Judge Alsup warned Google: "you are going to be on the losing end of this document with profound implications for a permanent injunction
        Davewrite
      • One forces the re-evaluation of methods and process.

        @ccrockett@...

        That is the one best for consumers. The one that forces innovation instead of mindless copying.
        Bruizer
    • RE: Microsoft's Android tactics are 'hard bargaining' but not patent misuse

      @Peter Perry
      [i]the mere fact that Microsoft is targeting Android for destruction is...[/i]
      the judge said it. Now the DOJ should start antitrust proceedings against M$!
      The Linux Geek
      • RE: Microsoft's Android tactics are 'hard bargaining' but not patent misuse

        @The Linux Geek

        That is NOT what the judge said. In spite of your obvious desire to paint any MS news as negative ... what the Judge said was " Even assuming that these transactions and the related evidence establishes that Microsoft is bent on eliminating Android as a competitor ... "

        He isn't saying MS IS bent on ... he IS saying that even IF MS was bent on eliminating Android, this patent issuing is NOT anti-trust worthy. Reading for comprehension not amoung your 'gifts,' eh?
        whatagenda
      • RE: Microsoft's Android tactics are 'hard bargaining' but not patent misuse

        @The Linux Geek ..again...because MS has always acted like this and won't stop...ever. Don't license ANY patents to MS and see how long they live. Maybe due to FRAND you have to grant an EU license, but nothing in the US requires it.
        timspublic1@...
    • @ccrockett

      Considering the iPod revolutionized music players, the iPod Touch did it again, the iPhone revolutionized smart phones, the Macbook Air created the ultrabook category whole cloth, and the iPad created the current tablet market whole cloth, all of which gave consumers choices that didn't exist before, while Microsoft released a couple of operating system revisions and a gaming console, I would say, based on the real world and not fevered imaginations, the Apple's model has offered more choices and options for consumers.
      baggins_z
      • RE: Microsoft's Android tactics are 'hard bargaining' but not patent misuse

        @baggins_z <br>Well considering Apple made everything possible today, we should ignore their tactics and make apologies for them. You were probably the same guy railing against Microsoft during their monopoly years as well. Sorry but licensing your tech to others to use is a good business model and doesn't hold back the market like Apple does with suing the pants off anyone and everything that tries to compete with it. Really shows the true colors of Apple and how they do not play nice in the industry and I am sorry all this stuff makes products more expensive than just licensing it and moving on! Do you have no basic principles to live by or are you just so in the tank with Apple that you can't dare say anything that goes against their scriptures?
        OhTheHumanity
      • RE: Microsoft's Android tactics are 'hard bargaining' but not patent misuse

        @baggins_z The iPod only updated the Walkman to digital status.
        timspublic1@...
  • test

    test
    Dietrich T. Schmitz *Your
    • Patent Misuse clearly evident; Worse, Extortion can be proven

      @Dietrich T. Schmitz * Your Linux Advocate

      A passage from Wikipedia's definition of Extortion ( h-t-t-p://en.wikipedia.org/wiki/Extortion ):

      <i>"Extortion (also called shakedown, outwresting, and exaction) is a criminal offence which occurs when a person unlawfully obtains either money, property or services from a person(s), entity, or institution, through coercion."</i>

      A key passage from Wikipedia's definition of criminal offenses punishable by the Rico Act: ( h-t-t-p://en.wikipedia.org/wiki/Racketeer_Influenced_and_Corrupt_Organizations_Act#RICO_offenses ):

      Rico Offenses:

      <i>"Any violation of state statutes against gambling, murder, kidnapping, <b>extortion</b>, arson, robbery, bribery, dealing in obscene matter, or dealing in a controlled substance or listed chemical (as defined in the Controlled Substances Act);"</i>

      ===============

      From GrokLaw's Pamela Jones in the below linked-to article:

      <i>"But the most explosive section is where Barnes & Noble describes what Microsoft said to them when they approached Barnes & Noble with a <b>demand that they pay</b> for a patent license:"</i>

      Microsoft to B&N:
      <i>???And what they basically told us was, it doesn???t matter if you have defenses, whether you don???t infringe, whether our patents are invalid, you???re going to need to take a license, because there???s no way that you can get out of our grasp, that we have so many patents that we could overwhelm you.???</i>

      Me:
      If B&N can prove Patent Misuse, then the above information in the petition indicates that Microsoft practiced <i>extortion</i> under the cloak of a <b>Non-Disclosure Agreement</b>.

      All this points to Microsoft being culpable in yet again Antitrust abuses and criminal acts.

      Source Groklaw article:
      h-t-t-p://www.groklaw.net/article.php?story=20120209222500188
      Dietrich T. Schmitz *Your
      • RE: Microsoft's Android tactics are 'hard bargaining' but not patent misuse

        @Dietrich T. Schmitz * Your Linux Advocate

        A patent holder has no legal obligation to license it.
        msalzberg
        • RE: Microsoft's Android tactics are 'hard bargaining' but not patent misuse

          @msalzberg
          Here's a link to my google+ and the same information:

          h-t-t-p-s://plus.google.com/u/0/101839830409692150605/posts/1J2TFHKNaYg
          Dietrich T. Schmitz *Your
      • RE: Microsoft's Android tactics are 'hard bargaining' but not patent misuse

        @Dietrich T. Schmitz * Your Linux Advocate

        Thanks for the Groklaw link.

        I don't think extortion would apply. But what do I know?

        The problem, as I see it as a layman, is that B&N has to prove patent misuse, and claims such as this: "Nonetheless, the evidence???all of which must be read in the light most favorable to Barnes & Noble with all inferences drawn in favor of Barnes & Noble and against Microsoft..." don't make the case.

        By the way, I wonder why your comments have been flagged.
        msalzberg
      • Summary determination

        @msalzberg
        The reason the court has to rule taking the facts in favor of B&N is that MS brought the summary determination. This is before the trial and to rule that a something can be decided before the judge has to favor the non-moving party. This means any decision that is not clear cut needs to be as if the non-moving party 'won' that point. IANAL but is my understanding.
        BorgX
  • RE: Microsoft's Android tactics are 'hard bargaining' but not patent misuse

    Good for Microsoft, they did nothing wrong and now those linux users will have to eat crow. If its one thing Microsoft knows, its business.
    hard bargaining != crime
    Loverock Davidson-