ITC may help Apple and Microsoft force Google to negotiate

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?

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