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

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.

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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 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.

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216 comments
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  • IOS is much better than Android

    The only reason people buy Android is because the Iphone isn't available on Verizon. I hate Apple and I'm an IT guy, but I have to admit that after getting my wife an Android phone and playing around with it for a few months the verdict is it really is a piece of shit OS compared to IOS. It's way too difficult to do things. The interface is clunky and the battery is constantly going dead due to apps running in the background. It's only doing well because Iphone isn't on Verizon's network.
    alderran
    • RE: Android in the cross-hairs: if you can't compete with it, litigate it

      @alderran You're not accounting for Android's success on the rest of the planet and on other carriers.
      jperlow
      • RE: Android in the cross-hairs: if you can't compete with it, litigate it

        Yes, I agree, when you consider both the diversity of products as well as the diversity of markets, Android has huge potential as an open-source OS (mobile or not).
        Just look at the tablets over at http://www.AndroidGold.com and on eBay.com and you can see that while the best Android tablets are still to come, the mobile handset is only one "form factor" for which Android is suited.

        While the major software developers, handset manufacturers, and presumably wireless carriers battle it out for space in America's mobile handset market, the rest of the world is off an running with the Android OS, and both Apple AND Google will be racing to catch and control the global Android market.
        Android Hype - Anrdoid Tablet Reviews and More
      • Android's one advantage is...

        @jperlow :... price, not capability. This is evidenced by a number of factors, including this one: http://www.pcworld.com/article/206859/lg_scraps_android_22_tablet_plans_waits_for_30.html?tk=nl_dnx_h_crawl

        Because no manufacturer is paying Google directly for the rights to use Android, Android devices tend to be significantly lower priced than they would be normally and quite often are priced from $100-$200 cheaper than the supposedly equivalent iPhone and Blackberry devices. Of course, this also means that these generic Android devices have a tendency to be less well-built (note the many reviews that comment on the cheap feel and weight of almost every physical keyboard model) and less reliable. Worse, because there are so many competing Android devices coming out on an almost-monthly basis by the same manufacturers, the price of a given model tends to drop to half its original price within 3-6 months--and this includes Motorola's own Droid models. So Android's success is due almost exclusively to its low price and extreme availability, not through any perceived superiority of the platform itself.

        If the iPhone does come available on Verizon or another US carrier, I believe you'd see a significant drop in Android sales or a huge jump in iPhone sales for at least half a year. This wouldn't completely override the sales growth of Android phones--after all, many people still look at price over quality--but those that were on the 'make-do-with-what's-available' list would drop their plans to buy an Android or get rid of their existing Android for what they perceive as the better product.

        As yet, Android really isn't ready for the market it has created; both LG and Google have now said as much. The only reason it's doing as well as it is has to be the fact that it's the lowest-priced series of smart phones on the market on average and is available--in the US--on carriers that don't yet carry the iPhone.
        Vulpinemac
      • RE: Android in the cross-hairs: if you can't compete with it, litigate it

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

      @alderran
      Agree. Actually, the problem with Android is not Android itself: it's the load of crapware that OEMs preloaded on Android.
      illegaloperation
      • RE: Android in the cross-hairs: if you can't compete with it, litigate it

        @day2die That is one thing I really love about my iPhone - no crapware to remove... now if it had a few more features that I would not have to jailbreak to get I'd be set but as it is I prefer a closed garden (with a way to break down the walls) than all the carrier crapware - I have enough of that on my work BB.
        athynz
      • RE: Android in the cross-hairs: if you can't compete with it, litigate it

        @athynz

        And Apple won't reformat your phone without your permission (or knowing) if they discovered you jailbroke your iPhone.

        http://www.linux-magazine.com/Online/News/HTC-G2-Detects-When-Rooted-Reinstalls-Stock-OS
        WarhavenSC
    • RE: Android in the cross-hairs: if you can't compete with it, litigate it

      @alderran

      Both interfaces are clunky and are based on last century's OSs. The day of the small desktop crowded with icons being promoted as a UI have gone. Both systems are looking real old and you can only have so many geeks excusing Android's clunkiness or arty types trying to prove that style is better than substance.

      Wait a week and get a Win 7 phone and leave those antiques alone.
      tonymcs@...
      • If Win7 is so good, why does MS need to sue?

        Honestly curious. If MS win7 is so stunningly good, wouldn't it simply dominate the mobile marketplace against inferior Android and IOS devices, with no need to resort to bogus lawsuits about sync-to-PC features that Palm had nailed decades before MS ever arrived on the scene?
        spark555
      • RE: Android in the cross-hairs: if you can't compete with it, litigate it

        @tonymcs@... Your joking right, Win 7 interface looks clunker
        mrlinux
      • ROTFLMFAO!!!!!!!!!!!!!

        @tonymcs@... Thanks dude, I really needed that laugh... that was too funny! iOS and Android antiques compared to WP7... LOL!
        athynz
      • RE: Android in the cross-hairs: if you can't compete with it, litigate it

        @tonymcs@... Windows Phone 7 is a fail. it has all the things that are wrong with iOS and some of the annoying things that are sometimes found in Android devices, and none of the good. No multitasking? No Youtube? Only installing approved apps from app store? Yea I wont hold my breath on that. Windows Phone 7 is a STEP BACK from Windows Mobile.
        Jimster480
    • RE: Android in the cross-hairs: if you can't compete with it, litigate it

      @alderran,

      The iPhone has the same battery life as the Droid. I have a Droid, and I will continue to have a Droid whether the iPhone is available on Verizon or not. Keep in mind, with the iPhone you can't upgrade your memory. You're stuck with what came with the phone.
      bmonsterman
      • RE: Android in the cross-hairs: if you can't compete with it, litigate it

        @bmonsterman LOL! You don't need to upgrade the memory. Every Android phone on the market is limited to 32 GB max that you have to pay extra to get. most start with 4 to 8 GB on the SD card. If I want 32 GB that bad I will buy a 32 GB iPhone off the top. LOL!

        If we are going to go that route I could say that almost every Android phone that has come out so far is a rip off. Most are made out of cheap plastic, cheesy screens etc but sell for almost the same as the iPhone. Even look at the tablets. Samsungs Tab is going to cost as much as an iPad or if you subsidise it then it will cost much more and it's only 7 inches with 16 or 32 GB and you have to pay if you want to go to 64 (Max adding 33 more GB leaving you with dual storage spaces?)
        tymiles
    • RE: Android in the cross-hairs: if you can't compete with it, litigate it

      @alderran

      That's your opinion. I love my Nexus. I think it's leaps and bounds better than IOS. Which phone did you get?

      The whole double dipping licensing thing is a farce! This is fundamentally no different than Microsoft were to sue any OEMs because SOMEONE could write SOFTWARE for it SOMEWHERE that would violate one of Microsoft's innumerable and ridiculous patents. If google licensed Activesync for the software, then Microsoft hasn't a wit of merit to stand upon.
      tkejlboom
      • RE: Android in the cross-hairs: if you can't compete with it, litigate it

        @tkejlboom
        HTC, LG Electronics and Samsung all took licenses. Jason is trying to make this look like victimisation. It's just business. make a successful product using someone else's IP, and they will expect to get their fair share of the profits. If you are not making a success of it, there's not so much point suing you is there?
        A.Sinic
      • RE: Android in the cross-hairs: if you can't compete with it, litigate it

        @tkejlboom
        I have a Samsung Galaxy. I find Google is an amazing company but Android compared to iphone is subpar. Many annoyances, like trying to update a contact, kind of very basic task,! good luck
        theo_durcan
    • RE: iOS is better

      @alderran

      @alderran

      I used to think differently because I was pissed at Apple for not allowing cross-compiled apps on their app store. But honestly, after using both phones for a significant amount of time (iPhone 3GS and HTC EVO) I would say the iOS stands slightly above. It's just cleaner, nicer, more "smooth," and it doesn't come loaded with crapware and different OS "flavors" (the flavors are a big downside in my book) So the main reason I like my EVO? My monthly bill is nearly half as much, and I can actually make a phone call that doesn't get dropped. Good luck to win7 phones, I want to try it now and see what the fuss is about.
      Random_Dev