Microsoft targets Motorola Mobility, claims patent abuse

Microsoft is the latest tech giant to take aim at Motorola Mobility--and thus, by virtue of its $12.5 billion acquisition, Google--in a FRAND (fair, reasonable, and nondiscriminatory) patent abuse claim.

The software giant today filed a formal competition law complaint with the European Commission against Motorola, arguing that the company is not offering essential patents on fair and reasonable terms. The complaint involves patents Motorola holds related to Web video and the way in which certain devices, like Windows PCs and the Xbox, access and play it.

"In legal proceedings on both sides of the Atlantic, Motorola is demanding that Microsoft take its products off the market, or else remove their standards-based ability to play video and connect wirelessly," Microsoft vice president and deputy general counsel Dave Heiner wrote in a blog post today. "The only basis for these actions is that these products implement industry standards, on which Motorola claims patents. Yet when the industry adopted these standards, we all were counting on Motorola and every contributor to live up to their promises."

Heiner says Motorola is forcing Microsoft to pay $22.50 in royalties for each $1,000 laptop. Those laptops rely on 50 patents the mobile company holds for the video standard H.264. In order to use that standard, Microsoft says, it needs to license patents, based on FRAND terms, from 29 other companies, as well. Those companies charge the software giant "2 cents for use of more than 2,300 patents."

This isn't the first time Motorola has been hit with allegations of FRAND abuse. Earlier this month, after losing a German court battle in which a judge ruled Apple's iPhone and iPad violated 3G patents Motorola holds, the Cupertino, Calif.-based company slapped its counterpart with charges that it violates FRAND standards.

"Apple appealed this ruling because Motorola repeatedly refuses to license this patent to Apple on reasonable terms, despite having declared it an industry standard patent seven years ago," an Apple spokeswoman told CNET at the time.

In response, Motorola said that it tried for years to work out fair licensing terms with Apple, but the iPhone maker refused.

"Apple's refusal to negotiate in good faith, as well as their aggressive litigation campaign against Android, left Motorola Mobility with no option other than to seek to enforce the company's rights and patent portfolio," Motorola said, adding that it would rather license patents than engage in litigation.

As one might expect, given the companies' contentious relationship over the years, Microsoft's Heiner was more than willing to target Google in today's blog post. The search giant announced plans to acquire Motorola Mobility for $12.5 billion last year. Regulators recently approved the acquisition, paving the way for Google to take control of the mobile firm.

Heiner argues that Google's involvement with Motorola could be a bad thing for the industry. He pointed to a recent commitment made by Microsoft and Apple, among others, saying they would not seek injunctions on products that might be violating standard, essential patents. Google, Heiner says, declined the opportunity to do the same.

"Google's unwillingness so far to make this commitment is very concerning," Heiner wrote. "That's why you can pretty well count on a chorus from across the industry: 'Google: Please don't kill video on the Web.'"

But Microsoft isn't necessarily a victim in the world of patents. The software giant over the last several years has secured well over 1,000 deals with companies over claims that they are using patents the software giant owns. Microsoft has been especially successful licensing patents to Android vendors. Heiner acknowledged today that "more than 70 percent of Android devices are now licensed to use Microsoft's patent portfolio."

Motorola is one of the few Android vendors that have not played nice with Microsoft. Rather than license patents from the software company, the mobile firm last year decided to battle it out in court. In December, a U.S. International Trade Commission judge found that Motorola is allegedly infringing just one of seven patents Microsoft holds.

"Microsoft is not seeking to block Android manufacturers from shipping products on the basis of standard essential patents," Heiner said today about his company's past litigation. "Rather, Microsoft is focused on infringement of patents that it has not contributed to any industry standard. And Microsoft is making its patents--standard essential and otherwise--available to all Android manufacturers on fair and reasonable terms."

So far, the European Commission has not responded to Microsoft's complaint. But if you ask Heiner, the stakes are high, and something needs to be done sooner rather than later to stop Motorola and Google.

"Motorola has broken its promise," he wrote. "Motorola is on a path to use standard essential patents to kill video on the Web, and Google as its new owner doesn't seem to be willing to change course."

Neither Google nor Motorola Mobility immediately responded to CNET's request for comment.

Update 6:11 a.m. PT to include more details.