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The Future of Android, Part 1: The Legal Squeeze

The Future of Android, Part 1: The Legal Squeeze

Android is developing a huge and growing following among consumers. Android devices made by a wide variety of manufacturers are attracting millions of customers every week. But its popularity has also made it a lawsuit target. Players from all corners of the tech world have put Android in the legal cross hairs, claiming the open source mobile OS is crawling with patent violations.

By Richard Adhikari
08/02/11 5:00 AM PT

To say Android's popular among consumers is like saying Godzilla's a lizard. It's a question of degree.

More than 500,000 new Android devices were being activated daily, and the number was growing at 4.4 percent week over week, Google's Andy Rubin tweeted in late June.

comScore's figures show that for the three-month period ending in May, Android was the leading mobile platform in the United States, with 38 percent of the market.

However, Android is facing considerable legal problems, and that might slow down its surge somewhat.

Oracle's suing Google over Android, while Microsoft and Apple are suing Android device manufacturers over patent issues. Gemalto, which bills itself as the world leader in digital security solutions, is suing both Google and some Android device makers.

Can Android survive these legal challenges, or will Google have to overhaul the operating system -- and take a beating while doing so?

Neither Google nor Gemalto responded to requests for comment by press time.

The Legal Armlock on Android

Microsoft, long considered Public Enemy Number One to many in the Linux and open source communities, claims ownership of patents on several technologies used in Android.

It is collecting royalties from various Android mobile device manufacturers, including HTC, Wistron and the Itronix division of defense contractor General Dynamics.

Microsoft has also filed suit against Samsung, Motorola and Barnes & Noble over their use of Android.

Meanwhile, Apple is suing HTC and Samsung for patent infringement, and it's believed Cupertino wants to establish a precedent for gleaning high royalties on Android devices by getting HTC to knuckle under.

Apple both filed suit in court and filed claims with the United States International Trade Commission, asking the latter to ban imports of Samsung and HTC devices running Android.

Google Gets Bashed Over IP

Then there's Gemalto, which bills itself as the world's leader in digital security.

Gemalto has filed a patent infringement lawsuit against Google, HTC, Motorola and Samsung for the use of its innovations in the Android OS; the Dalvik virtual machine, which is at Android's core; and associated development tools and products -- the Android SDKs Google has released.

Finally, there's the granddaddy of all litigious patent-holders, Oracle. Fresh off a court victory that let it crush arch-rival SAP and collect US1.3 billion in compensation, and while duking it out in court with HP over the Itanium chip, Oracle filed suit against Google for patent and copyright infringement over Java, which it now owns following its purchase of Sun Microsystems.

No Gain, No Pain

There's speculation that Apple's driven by concern that Android is overtaking it in the smartphone market.

The success of Android -- which is predicted to dominate the global smartphone market by August 2012 -- may also lay behind the other attacks on the operating system and on Google.

There's apparently a lot of money to be made from royalties on the Android OS. It's reported that Microsoft's making more money from HTC over its Android patents than it is from its own Windows Phone 7 mobile operating system.

Consumers Will Reap the Whirlwind

Ultimately, the consumer will suffer the consequences if Android device manufacturers or Google lose in court.

Android device makers might be hit hard if they were legally barred from incorporating multitouch and zoom and other technologies Apple and other parties are claiming rights over.

"If Apple was the only one that could offer a polished touch experience and OEMs have to go back and figure out a totally different way of doing things, that would be a challenge," suggested Peter Farago, vice president of marketing at Flurry.

Still, Android device makers might be able to survive that. And if they and Google lose on patent rulings, it will only make Android devices more expensive.

However, Android might be more severely hurt if Apple wins favorable rulings from the ITC.

"I'm concerned that Apple will not have the same interests as Microsoft, which is reportedly making more money off their licensing off HTC Android devices than it does on Windows Phone 7 so it won't want to kill the golden goose," Michael Morgan, a senior analyst at ABI Research, said.

"Apple doesn't need to do that," Morgan told LinuxInsider.

An administrative judge at the ITC has already issued a preliminary ruling against HTC on two of the four patents at dispute with Apple. Having that ruling overturned by the full ITC commission is an uphill task.

"HTC will have to overcome a number of procedural hurdles just to get heard," Julie Machal-Fulks, a partner at Scott & Scott, told LinuxInsider.

A ruling in favor of Apple could see HTC's devices, at least, banned from importation into the U.S., an outcome Apple is also seeking in its complaint against Samsung before the ITC.

Under Section 337 of the Smoot-HawleyTariff Act of 1930, the ITC has the power to block the importation of products deemed to constitute unfair practices in import, Fulks said.

The Best Things in Life Aren't Free

Perhaps the real problem with Android is that Google has few patents of its own for the operating system, according to Rob Enderle, principal analyst at the Enderle Group.

"Google lacks a strong patent defense because they don't own much of the intellectual property they sell," Enderle told LinuxInsider. This means Oracle's chances of winning its suit against Google are "good," Enderle said.

"Intellectual property is the fly in the soup of using free and open source software," Carl Howe, director of anywhere consumer research, told LinuxInsider.

"The good news is that the software is free. The bad news is that there's no entity who will take all the risk that the open source software infringes patents," Howe added.

"Apple wants to shut Android down, and Microsoft and Oracle want royalties from it; it's on the fast track to be the most expensive free product ever created," Enderle stated.

"P.T. Barnum would be so proud," he added.

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