ITC may help Apple and Microsoft force Google to negotiate

ITC may help Apple and Microsoft force Google to negotiate

Summary: Google is in a corner. How do you suggest they get out of it?


One of the less-remarked aspects of suits filed by Apple and Microsoft against Google over Android is they were also filed with the U.S. International Trade Commission.

While the court dockets are jammed, so any case on the merits of patent claims might take years to come to trial, Florian Mueller of FOSSPatents has done some research and thinks a binding ITC decision could come in just 18 months.

Google could be dead before a court can hear its claims.

The reason for this is that the Android is imported. Like nearly all phones in the U.S. market, it's made in China. Thus it must conform to the rules of the ITC before coming to this market.

As Mueller notes:

The USITC makes determinations in investigations involving unfair practices in import trade, mainly involving allegations of infringement of U.S. patents and trademarks by imported goods. If it finds a violation of the law, the USITC may order the exclusion of the imported product from the United States.

The emphasis is mine. The ITC has the power to control imports, the Android is imported, thus the ITC can have jurisdiction over Android.

Here is where things get dicey. Since the ITC is not really a court, let alone a patent court, I doubt it has power to rule on whether the Apple or Microsoft patents are valid. Since they exist, the ITC might decide it has no choice but to keep products containing them from being imported.

In this case the patent court would be Google's avenue of appeal. The Android could be a dead letter between an ITC decision and the time when appeals on a patent case are complete. In short, game over.

You will note that, so far, Google has only responded to Oracle's patent suit. (Oracle can't file with the ITC because imports are not at issue, only Java is.) It could be that Microsoft and Apple have found a fast-track to turning off Google's bluster and forcing it to the table.

So what should advocates of open source think?

Ironically, Google's own actions have made rooting for it seem positively unAmerican.

The beneficiaries of the Android platform, so far, are Chinese OEMs and the Bell companies. The Chinese like Android because it ends Intellectual Property (IP) royalty payments to American companies. The Bells like it because they can twist Android into a closed system.

Both these outcomes are bad for American users. I am on record as hating AT&T crapware. All an end to IP payments does to Chinese manufacturers is increase their profits, while raising America's trade deficit.

In the current environment even Google loses. Carriers are under no requirement to support Google's services using Android. AT&T Galaxy phones come with browsers that default to Yahoo.

This does not make me sympathetic to either Apple or Microsoft. Apple is claiming here that they control all multitouch devices for the next decade. Microsoft is claiming to control all sync technology between a mobile device and the Web. (Haven't they heard the good news about Funambol?)

Still, in a world where America's patents and copyrights are increasingly our only value-add in the tech world, Google is in a corner. It doesn't just have legal troubles, it has political ones.

How do you suggest they get out of it?

Topics: Google, Android, Security, Patents, Oracle, Mobile OS, Microsoft, Legal, Apple, AT&T

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  • RE: ITC may help Apple and Microsoft force Google to negotiate

    Google should negotiate and make the appropriate licensing payments. They are not a true subscriber to Open Source. They have taken over open source products like linux and java and used them to their own advantage. But, they have not contributed back to the open source community as they are supposed to.<br><br>At the same time, they have appropriated other company's technologies in the same way as they have appropriated personal information of their users and other sources. They have run fast and furious taking everything they can and it is time they are brought to heel.<br><br>Google would be a much less profitable and powerful company if they were forced to pay for all the information and IP that they use. In the mean time, they have become one of the most dangerous companies in the world because of the stock of personal data they have on their servers. Let Google pay!
  • RE: ITC may help Apple and Microsoft force Google to negotiate

    How about they just quit exporting jobs overseas & start letting Americans create their own version of Android? Open source has succeeded outside the US, I realize, because the poorer countries have far more to gain in getting onto the Web with things that don't cost out the wazoo like MS & Apple products, but esp. with the recession, more & more Americans are warming up to Open Source, helped by Android phones & Ubuntu (& other easy to use Linux distros). We can no longer afford the big guys' pricey products, nor can our companies, esp. as taxes are increasingly levied on businesses & higher-end earners. There has never been a better time for Google to let US programmers patent their software in the US, where the Communist control freaks aren't quite in control here just yet (but that's another rant along the lines of my not seeing elections in 2012 due to a climate that lets our president do as he wishes without restrictions, even when it's not legal).
    Google: You're supposed to be an American company. You make a lot of your money here. Leave the other countries with their version & let Americans go them one better, with patents in the US. When what we have is clearly better, you won't have these concerns. You'll back the expensive guys into a corner where their only market is the elites of the world.
    • The Tea Party Express has left the building


      You Tea Party crazies or retards would have so much more validity and a true sense of reform if your message was not convoluted in extremist "right-wing" can't think for myself propaganda that just sounds like a two year old crying over spilled milk . . . then you all wonder why no one takes you seriously . . .
      • I have yet to hear a tea partyist say anything as extreme as obama

        but then again to socialists marxist he probably doesnt sound extreme right now...
        Johnny Vegas
      • Just what has Obama said or done that is extreme?

        @Johnny Vegas
        Health care reform has been attempted by Republican and Democratic Presidents for like a hundred years and he ran on it so he kept his promise and did what prior administrations have failed to do for a hundred years now. So that might seem extreme but in a good way.

        He's so far been fairly middle of the road as far as I can tell. The Liberals and Conservatives are all up in arms about him. Basically the Liberals think he's too conservative and the Conservatives thing he's too liberal so to my mind that means he's middle of the road.

        Name these extreme policies and or words he has used please.

        Pagan jim
        James Quinn
  • RE: ITC may help Apple and Microsoft force Google to negotiate

    Not a well researched or written article, I have to say...

    Which part of the Android OS is "unfair practice"?
    - Everyone (except Moto, and even they seem to relent) who builds Android phones and exports them to US is already paying M$ the due royalties for ludicrous software patents
    - There is nothing holding Microsoft back in building & publishing a competitive phone OS, it's their own fault that they're late to the party
    - I am not sure about Apple's part in this - but even they settled with HTC at least (maybe with others too?) in their patent dispute

    I can see how they may be infringing SW patents - in the same way that almost every piece of software does, one way or another. What I cannot see, however, is how this is unfair practice.

    I am also not sure what Microsoft would try to achieve with this - IF the ITC were to take their side (big IF), it would be the manufacturers that are already building Android phones that would suffer - the very same companies that are supposed to partner with Microsoft for building WP7 phones. Why are they trying to piss off their partners?
  • Fact check...

    Did you research this article at all???

    Apple filed ITC complaints against HTC and Nokia, in HTC case, all handsets concerned ran either Android OS or Windows Mobile 6/6.5, nothing specific targeting Google.

    this article very misleading
    • but this explains WHY they targeted HTC & Moto instead of Google..

      @ietom .. and that's because going after Google would have meant a decade long patent case in court... too much time to have the disired effect of slowing androids roll and removing the android is free argument.. it's not free.. when you use android you have to pay people all over the map for the IP it contains... targeting a foreign manufacture (HTC) through the iTC means a resolution in about a year and not having to actually validate and defend the patent itself... only prove that it has been violated. this way they can strong arm HTC and others into paying royalties, spread FUD about android etc.. Microsoft same thing.. android is selling well.. and a) they get a piece of that pie and b) all this licensing means that android is actually not free, so android doesn't have that we're free argument anymore... in order to use android you have to pay licensing to all kinds of people and this is good for WinPhone7..
      • RE: ITC may help Apple and Microsoft force Google to negotiate

        @doctorSpoc <br><br>For Starters, Apple ITC complaints refer directly to HTC violating Apple IP (UI Elements in HTC Sense, Managing Power on Device, Object-Oriented Graphic System used in HTC Sense), on both Windows Mobile 6.5 and Android!!!!<br><br>If what your saying is true, Apple be filing complaints against Dell, LG, Samsung, Sony Ericsson, Motorola, Lenovo, ASUSTeK ..... And many more<br><br>BTW Microsoft suing Motorola will have little effect on the success/failure of Windows Phone 7

        ZDNet please research articles before publishing!!!
      • DoctorSpoc

        @doctorSpoc Thanks. You've got the right explanation. The complaints name HTC and Motorola. Both are, in fact, aimed at Google and Android.

        Although the critics have a point as well. Motorola or HTC could seek to negotiate out of this on their own, either making changes to their phones or paying Microsoft and/or Apple.

        The game by Microsoft and Apple is to force those who want to use Android to pay more in IP charges than they presently pay to other players, eliminating the Android cost advantage.

        Sorry this wasn't more clear. Blame the time difference.
  • RE: ITC may help Apple and Microsoft force Google to negotiate

    They should stop using technology that uses other peoples patents, unless they're paying licensing to use those patents
    • RE: ITC may help Apple and Microsoft force Google to negotiate

      @mgrubb@... the ip that they are paying for is bs. Software patents should not exist. Especially the broad spectrum bs filed by Apple and Microsoft.
  • RE: ITC may help Apple and Microsoft force Google to negotiate

    This author posts a lot of pro corporatist against the small guy type articles. Google is small by no means but Google does seem to take a stronger stand on issues that affect the small guy than either Microsoft or Apple. I'd take Google any day.
  • All the tea party hacks get a life . . .

    For all you guys crying about jobs going to China or made in China this or that but hate government . . . good luck with that. Your love for corporate good will is going to be the downfall of this country. Corporations hate regulations for a reason because they do not want rules. That my dear sir is the real reason our country is in the tank.
  • Check the author's title . . .

    Business journalist for 30 years, a tech freelancer since 1983. Right before Reagan's reelection and all this deregulation nonsense.
    • RE: ITC may help Apple and Microsoft force Google to negotiate

      @eprisencc You mean I'm a Reagan Republican? Who knew.
  • RE: ITC may help Apple and Microsoft force Google to negotiate

    This is some bs. Android is better and bigger and companies with their closed crappy platform (ios sucks and is controlled by Steve jobs) and (wp7 is a step back from WM). Also the companies that are profiting are not Chinese (unless hey are the physical oem but then again everything is made in China so should we stop importing all goods because China is making money?) Since Motorola is not Chinese and is the most popular maker of android handsets in the USA.
  • How do you suggest... -- warm up to APT, ECT and all

    IMHO: All it requires of Google is a quiet chat with Commissioner Karel De Gucht, Dr. Surin Pitsuwan, Deputy Head Vladimir Tkachenko and the guy in charge at UNASUR. It's mainly an SaaS World now-a-day's and in the A&M-version of it, nothing much is left to the rest of us. So, this thing can get into a real stink politically, right up to the eye-balls of both Steve's.

  • This article is baloney

    Google is an American Company. Android is developed primarily in America. Android code is in America. Google is not importing Android.The only thing that is being imported is the mobile phone hardware. To bypass any absurd decision a kangaroo court like ITC may come to, all it would take is to include a bootstrap software (which ITC can't block) in the phone hardware, and then have users bootstrap the all American Android software into it in the good old US of A using 3G.
  • Moto has patents too

    We haven't heard their response to the suit yet, but Moto has tens of thousands of patents in the field of cellular technology. Motorola invented the cellular phone.

    If Microsoft wants to play duelling injunctions with the ITC, they're going to find themselves on the short end of this one.