Patent fights could change Google's Android pitch

Microsoft has now joined Apple in a guerrilla war against Google's Android, and Google's next steps are far from certain.

The smartphone industry is still in its infancy, but its strategic importance to computer companies big and small can't be overstated. Recent moves from Apple and Microsoft show that the big guys are not going to be shy about deploying their array of patents as competition increases.

HTC's lawyers have had a busy couple of weeks, responding to a wide-ranging patent lawsuit filed by Apple and negotiating a patent licensing deal with Microsoft. The common thread? HTC's Android phones, which represent some of its best work over the last year and a possible threat to Apple's and Microsoft's mobile ambitions.

So why all this attention to HTC, the fourth-largest smartphone maker in the world? HTC is perhaps the most high-profile Android customer, along with Motorola and Samsung. Unfortunately for HTC, it's also considered to be the most patent-poor company among those mobile partners.

Companies like Motorola, with a legacy of mobile phone development, have a far better defensive position, said Ken Dulaney, an analyst with Gartner. Any company that tried to sue Motorola over mobile patent issues would likely find itself ripe for a countersuit, given that Motorola could pick through its array of patents and find technology that arguably infringes on its holdings.

Still, other Android partners are sure to be wondering if they are next. And over at Google--the indirect target--executives appear to be mulling what to do. Not that we know for sure since they've gone into near-complete radio silence on the issue. Google has yet to make a strong statement regarding Apple's March lawsuit against HTC and refused to comment on anything related to Microsoft's licensing deal on Wednesday.

For now, it appears HTC is going to have to fight these battles on its own. Google has said that it supports its Android partners, but has not elaborated on whether that includes monetary support, legal support, or moral support. At Google's Campfire One event in March, just after Apple announced its HTC lawsuit, a senior Google executive grew extremely uncomfortable when the lawsuit was brought up on the sidelines of the event, refusing to comment one way or another on the suit even off the record.

But, as Michael Gartenberg, an analyst with Altimeter Group, noted in his blog Wednesday morning, other Android partners may be wondering if one of the main selling points for Android--that it costs handset makers nothing--is becoming less of an advantage.

"The net is a changed dynamic in the cost of what implementing (an) OS really is and handset vendors' willingness to settle patent claims or go through the hassle of the courts," Gartenberg wrote. If Android partners have to account for the cost of defending themselves against patent claims or making licensing payments as part of the cost of building an Android phone, the process no longer appears to be free.

Motorola representatives did not respond to requests for comment on whether or not Microsoft or Apple had contacted it about potential licensing deals. A Samsung representative declined to comment on the same question.

There are certainly other selling points to the Android platform besides its cost, but businesses hate uncertainty, especially when it comes to patent cases that can drag on for years without a clear resolution.

Open-source licensing may also help explain why HTC, rather than Google, has become such a target. Android is made available to partners under the Apache 2.0 license, which makes the licensee responsible for any patent violations, according to Mark Goldstein, a patent lawyer with SoCal IP Law Group in Westlake Village, Calif.

At the same time, it's harder to sue for patent infringement until the technologies have been implemented in a final product, Dulaney said. "They got sued because until you take open source and put it in a product you can't get sued," he said.

Of course, Google also has a significant amount of resources to defend itself against any such attacks.

By attacking Google's Android distribution chain, however, the companies can go after Android without attacking Google head on. That may be a shrewd, hardball move: Android has emerged as the clear threat to both Apple and Microsoft's mobile businesses, and up until the lawyers started to get involved, there seemed no downside to using Android in a phone. Handset makers like Motorola are not going to see Apple license the iPhone OS, and Windows Mobile is not competitive against iPhone OS or Android.

Microsoft's competitive position might change later this year when Windows Phone 7 devices are released, but until that's ready the intellectual property lawyers may be Redmond's biggest weapon as they go after Google's partners.

How Google reacts to such attacks will set the stage for the second round of Android's development. No matter what happens, doing business with Google's Android has just gotten more expensive.