Microsoft strategy against Android comes together
As I noted at the time, the non-decision in Bilski vs. Kappos gave companies a green light to try and sue innovation out of existence.
This nightmare has now come to pass.
The problem with software patents, as opposed to those for drugs or medical devices, is that they don't cover the way you do something, but the idea of doing something.
Thus, Microsoft claims to control the syncing of e-mail between the Web and a mobile device. You can't innovate around the patent, as you might around the patent for a new pacemaker.
This is what makes software patents so dangerous. They place an ever-larger tax on innovation, because innovations are always based on what came before. And if you can't innovate around an idea, then you must pay for it. And pay and pay and pay.
So we come to Android, which is drawing patent suits the way a fumble does 300-pound linemen. Microsoft is telling Android phone makers they must still pay it for use of its patents, that it might cost them less in Intellectual Property rights fees to go with Windows than with Linux.
In that scenario Windows doesn't have to be better. It doesn't even have to be as good. It just needs to be in the ballpark.
Patent rights in this scenario do for Microsoft what bundling did for it in the early 1990s. They get rid of competition.
Yes, this is a dangerous game. Other companies have big patent portfolios, not just Microsoft. Customers won't like being denied choice, and being forced to buy inferior products at monopoly prices. You could have either a patent "nuclear war" -- everyone suing everyone -- or potent political blowback.
These are questions for another day. For now Microsoft's patents are putting it back in the game, putting enough Fear, Uncertainty and Doubt into the minds of manufacturers that its offerings will get a hearing, and will likely find a place in the market.
How will Google respond, given the relatively small size of its patent portfolio compared with those of its proprietary rivals? How should it respond?