Microsoft has nailed a second Android device maker to a patent licensing agreement. The Redmond software giant announced on Monday that General Dynamics Itronix has signed a patent agreement that will provide "broad coverage under Microsoft's patent portfolio". In other words, General Dynamics Itronix has agreed to licensing …
If court proceedings regarding the other manufacturers turns out to quash the patents that MS said that it held or determined that they were not relevant to Android, what happens legally to the manufacturers that have signed up to MS's licensing deal like HTC and this new crowd?
Can they back out of them or are they stuck with it?
different area of law now
They've signed a contract now, so they've moved from payment law to contract law. It depends on the terms of their contracts.
IANAL, but so far as I understand it such contracts remain valid and enforceable unless they specifically provide some sort of provision to deal with voided patents.
It will depend on the wording of the contract
Believe it or not, but ou're not the first to think of that angle.
Any competent lawyer drawing up the contract will have written in clauses - one way or the other - specifying what would happen.
Since there are many patents being disputed, it is quite likely that not all patents will be thrown out. That might lead to renegotiation, but again it depends on what is in the contract.
I would assume that unless the contract expressly contains language stating something like if the "patents are ruled invalid" then that company would have to continue paying the MS tax for the length of the contract period. It would be foolish of MS to let that into the license and but to the advantage of the company licensing the technology.
Did they say which ones ?
MS has long been saying that Linux infringes its patents ... but is more coy as to which ones.
The one that seems to be the most defensible is the VFAT one. Extensions to the FAT filesystem to allow it to store long filenames.
Tomtom probably kicked this whole Microsoft patent bandwagon off by settling with Microsoft setting a precedent.
Is this the same General Dynamics
that make the F-16 Fighting Falcon?
It is indeed
It's a subsidiary of General Dynamics created when they acquired Itronix a few years ago
to do with massive dynamic though....
they are stuck with it. It's like any gamble, you weigh up the risks and make your choice. If it turns out you backed the wrong horse then you just have to suck it up as it is all carefully worded to be a licence fee to 'work together' not an admission that MS are right in their claim.
Of course there is nothing to stop the manufacturer moving to a new product which is just far away from the original that the agreement no longer covers it.
This signing up to dubious patent claims appears to be a way to try to make dubious patents claims seem more valid. Its not the first time Microsoft have played this game, as they tried the exact same underhanded game with what they claimed were hundreds of fictitious patents they said were against Linux and so they tried to get companies to sign up to their protection racket, out of fear of having to go up against Microsoft in court, if they didn't sign and once they signed that allowed Microsoft to claim they were agreeing with the validity of the dubious patents. Its a PR game not about validity at all. Its all an underhanded chess game to undermine their competitors.
Now Microsoft are trying it against Android. Same pattern of behavior and same end goal, to bring down their competitors with dubious patent claims.
Wait, hold on..
General Dynamics have lawyers and money. HTC have lawyers and money (and, in the case of using Android, a pretty good hook inot just using Gooogle's lawyers and money and they have so much that they have a big money pool to swim in).
This makes it seem unlikely to me that these patents are indeed worthless or fake or whatever it is that you can pretty much always expect El Reg commentards to call them. Put it this way, in order to make somebody pay blackmail, you really do need to have something on them.
Not necessarily true
Remember that patents stand until overturned in a court.
That means MS could potentially apply to bar HTC importing phones into the US and if they were successful, HTC would have to wait for the court process to happen before they could sell into the US market. That could be years during which HTC loses their market.
If a homeless guy starts hassling you, you can ignore him or you can pay him a dollar to bugger off. The same holds in business too. Sometimes it is just easier to pay the $5.
Of course if some or all of the MS patents do get overturned at some stage, HTC would likely renegotiate their deal.
Not necessarily invalid
just not related to Android -or any other Linux. The odds are that HTC and co are using FAT... on which MS has a few patents. Android-based or not, they then have to pay, and agree not to disclose the patents at stake so that MS can continue threatening the Linux community with vapourthreats.
Re: Wait, hold on..
"Put it this way, in order to make somebody pay blackmail, you really do need to have something on them."
New to human "civilisation" are we? There are plenty of cases of people threatening to go public with baseless accusations that would tarnish someone's reputation enough to make the victim consider a pay-off.
When some extortionist outfit like Microsoft threatens another company with their "portfolio", the risk is that they'll get a ban on imports of that company's products. If that company gets a bad decision because Microsoft have managed to make the slightest whiff of wrongdoing hang in the air, it's an extremely expensive situation to reverse. A lot of victims just make the pay-off to avoid the huge risk hanging over their heads.
The fifth largest defense contractor in the world
>> General Dynamics have lawyers and money.
General Dynamics builds guns, tanks, aircraft and submarines. But 34% of the company's revenue comes from information systems and technology.
General Dynamics built the first NSA certified smartphone: "used by tens of thousands of employees in the intelligence community and the Defense, Homeland Security, and State Departments among others."
"The Sectera Edge has been reported to be the smartphone used by President Barack Obama."
The obvious reason for a company as financially sound and technically competent as General Dynamics to license Microsoft's patents is because Microsoft's patents are valid.
Existing contracts would be affected to the extent of any clauses covering such eventualities. You'd hope HTC would have considered such things.
Microsoft? Fuck 'em. Preferably up the butt with the spikey end of the pineapple.
Where is Google in all of this?
They are conspicuous by their absence when it comes to defending their OS which it's claimed is breaching these patents. It strikes me as foolish for these manufacturers to have to pay for Googles "sins", even if they are making profit from device sales.
Re: Where is Google in all of this?
They didn't say the OS infringed on the patents, they said the manufacturers of some Android handsets infringed on them. Given the specific models, it would be reasonable to assume that it was either aspects of the handsets that are the violations or tweaks to the operating of the original OS made by these manufacturers rather than the original OS as released by Google.
Google can't just jump into this for several reasons
First of all, so far no patent has been specifically mentioned so there's no Google sin at all. As for the manufacturers, if they are foolish/coward/stupid to pay the extortion tax without complaining then there is no harm done. Google can't possibly know the manufacturers are unhappy because none of them has turned to Google for help. Microsoft has an easy ride on this, taking out the manufacturers silently one by one. This is how the racketing business is working.
Oh, and as far as I know, Google is not selling Android, it is just making it available for free.
But I thought...
Microsoft were suing just about every Android manufacturer, even those that make minimal changes to stock Android, suggesting it's the base OS that is infringing Microsofts patents.
I could be wrong though, but if the manufacturers were adding features that are now costing them $5+ per device I'd have thought they would stop including those features sharpish and ship stock Android at zero cost, or re-implement the infringing features to avoid paying Microsoft a penny.
No, it doesn't make sense that these manufacturers are wilfully adding features to stock Android that are worth paying $5+ per device to Microsoft.
A feature may cost you $5 in licensing and say another $10 to add to the device, but that $15 is far, far higher value inside the final device...
Put it this way - would you buy a smart phone for $500 if it didn't include that cheap, $10 (manufacture's cost) camera? Or would you go and buy the $600 model from the competitor?
The problem is not Android, it is Linux that is allegedly infringing. Build your product with VFAT and FAT32 support and you'll get sued.
I could be wrong but I don't think that Android or any other Linux distro is infringing. As far as I know (which is not very far), you can provide VFAT support (i.e. give your OS/device the ability to read, and perhaps write, VFAT FS) all you like. If you actually include some VFAT-formatted storage, however, you are open to litigation. Hence MS going after the *manufacturers*, not the OS. Suits them well for using a FS that an apatosaurus would find primitive and antiquated.
"agreed to licensing certain, unnamed Microsoft patents"
A condition of said licencing deal should be that the alleged patents are published. Then the world can see what you claim to be of importance, and moreso, if it holds water.
My choice is narrowing
Someone else that I won't be getting a phone from when I renew my contract.
Paying extortionists is defined as a criminal action in some places. I am certainly not keen on giving money to people who are helping to fund such activity.
This is the price you have to pay to do business in the US. As pretty much everyone does business in the US, they have to abide by their awful software patent system. Furthermore, if they decided to cease trading in the US so as not to have to pay these patent royalties, they're giving up on a large and lucrative market and in dereliction of their duty to their shareholders... this is also a serious offense in numerous jurisdictions.
So, good on you for taking a stand in favour of breaking all sorts of laws in all sorts of parts of the world. I trust you will be boycotting all businesses that sell products in the US in due course, and instead deal solely with Chinese domestic manufacturers, yes?
Re: Oh dear.
"Furthermore, if they decided to cease trading in the US so as not to have to pay these patent royalties, they're giving up on a large and lucrative market and in dereliction of their duty to their shareholders... this is also a serious offense in numerous jurisdictions."
Really? A criminal offence to not offer "maximum shareholder value"? Your shareholders can get upset and sue you for doing something they don't like, or at least the ones who don't feel represented effectively can try and do so - the big shareholders should vote with their feet and stop whining - but to state that as an offence is either wishful thinking or the definition of a corporate state.
But hey: how dare anyone get in the way of the sacred right to make maximum profits with no ethical constraints, right?
They lose in court, they have to pay back money
When a patent troll came knocking at a company where I used to work, the owner decided to fight after the troll upped the money he demanded. The patent in question was thrown out on a technicality, that it had flaws and had to be refiled within 12 months, but it was refiled after 18 months. The judge also said that he had never seen so much prior art brought to his bench. The troll appealed all the way to the Supreme Court, to no avail.
So what happened is that not only was the troll defeated, but that he had to pay back the other companies that he had hit up for licensing fees. After all, you can't accept fees for an invalid patent. (It would still have been cheaper to pay the troll than the lawyers, but that's life.)
So if Motorola, et al, win, then Microsoft's patents get tossed, and Microsoft has to pay back any fees. No big deal for Microsoft, but it was a big deal for the troll.
... someone still has to challenge Microsoft in court. Your patent troll was clearly waaaay off the mark but I doubt this is as clear cut and is probably cheaper paying fees than trying to get the patent invalidated in the courts. And as someone else has already said, invalidating doesn't necessarily mean they can simply walk away from a contract, depending on what the contract says.
is it me or does the whole software patent thing seem dishonest....
The very fact that the actual patents are never revealed say a lot about them. A patent has to be public, if its hidden you couldn't have patented it. So, while i guess those who license it, don't have to reveal what they licensed it, you would think Microsoft would brag about it to get others to sign up to those very licenses.
All smoke and mirrors, and the whole lot stinks of dirty money grabbing solicitors and Willy showing and who has the deepest pockets.
Sooner software patents are shown the be the horse shit that they are the better imho.
It's patently obvious ...
I thought patents had to be available for all to read. That's what 'patent' means.
In the old days, an inventor got a *temporary* monopoly of her / his invention as recompense for all the hard work of inventing. After the time was up, anyone could exploit the invention and, if possible, improve on it.
Then the lawyers got in on the act ....
Point of information
All patents are published, it is just MS is not revealing which specific patents of its vast portfolio are being licensed.
It's not as bad as you think.
The 'old days' are still here. Even better, you do not have to wait for the patent to expire before studying, researching and improving on a patented invention. And you can even patent the improvement. If your improvement is a worthy one, then you can get in on some cross-licensing fun with the other patent owner.
Re: It's not as bad as you think.
"If your improvement is a worthy one, then you can get in on some cross-licensing fun with the other patent owner."
I'm sure it is "fun". As for the all the bits about improving on patented work, it's as refreshing to meet someone who still believes in the benefits of the patent system for "inventors" as it is to meet someone who thinks that our politicians are selfless and upstanding people who only want what's best for us, or that the countryside is full of happy animals dancing between rainbows and chatting to Mr Farmer over the hedge, or that the oil companies really are interested in a transition to renewables within our lifetime. I could go on.
!!!In the old days, an inventor got a *temporary* monopoly of her / his invention as recompense for all the hard work of inventing. After the time was up, anyone could exploit the invention and, if possible, improve on it.!!!
Boulton and Watt just sat on their invention and didn't bother to carry on making further improvements... therefore the entire steam revolution was stalled until his patent expired...
!!The second downside of the patent system is the devastating effect it has on incremental innovation. From 1786 to 1800 there was no increase in the duty of steam engines at all, as Boulton and Watt successfully sought to prevent competition by suppressing innovation. This should be a cautionary note for people who think that the current wave of patent litigation triggered by a system of software patents created by the courts is likely to have a beneficial impact on software innovation.!!
Microsoft are basically doing the same and computing and software development are suffering as a result... just think how fast software development would be proceding without software patents... and look at this remark from Bill Gates himself which shows just how hypocritical he is:
"If people had understood how patents would be granted when most of today’s ideas were invented and had taken out patents, the industry would be at a complete stand-still today. The solution . . . is patent exchanges . . . and patenting as much as we can. . . . A future start-up with no patents of its own will be forced to pay whatever price the giants choose to impose. That price might be high: Established companies have an interest in excluding future competitors."
ps I do wish we could use simple formatting to wrap quoted text with quotes....
can i trust a company that claims to manufacture "rugged" computing products and yet are so testicularly deficient when dealing with a bully?
Well, then my next phone will not be an HTC. It will be a MOTO.
An "Example" ?
As usual, detailed terms of the deal have not been announced
Horacio Gutierrez, Microsoft's corporate vice president ... said .. ".. this agreement ... is an example of how industry leaders address intellectual property."
How the heck can it be held up as an example if the details have not been revealed? Such as exactly what patents are supposed to have been infringed.
Microsoft Protection Racket
No change there then.....
So how is this different from the mafia?
This reads like the Sopranos all over again.
Let's hope they rub some made man the wrong way and get shot in the chest a couple of times.
All signs point to HTC and Itronix folding due to their use of the half-arsed FAT filesystem*, and not because of anything related to Android. Then MS worded the press release so as to make it sound like Android itself violates MS patents, which is probably not true (if it was, MS would go after Google, not the handset makers). Just MS FUD strategy as usual.
*when, oh when will everyone finally dump that turd of a FS?
Both HTC & Itronix are very much "in bed" with M$ & have been for years. Itronix is very small (even with a bigger owner now) & requires every shred of help it can get from M$ for it's main products.. ditto with HTC who although bigger, have got where they are today, specifically by M$ feeding them technical "info", so whether these patents have substance or not, these 2 are easy marks... They both will treat it as just another tax.
Just Microsoft's opening moves, clearing away some of the pawns before the game starts properly. Wake me up when the game starts proper...
a tangled web
The increasingly complex web that's developed from all of the mobile patent enforcement actions in the U.S. is truly mind-boggling. What's more, it all seems rather wasteful, when one considers the fact that the likely result of all these lawsuits will be settlements and cross-licensing deals.
I was looking at Android
I was looking at Android this time, but if a thin dime goes to Microsoft, I'll get an iPhone 5 and deal with it. I'd as soon use a tin cup and a string than ANYTHING that feeds Microsoft.
What? You don't think Apple pay royalties to Microsoft. Of course they do. They are just as much in bed with Microsoft as these other companies.
Just look harder. There are more Android suppliers than HTC and these guys (who I have never heard of). For a start, try Samsung Android phone - not sure if they pay them royalties. Also, Motorola.
Yeah - 'cos Apple aren't patent trolls or anything.
I guess they could have agreed to pay Microsoft $5 for each phone sold and (in a 'separate deal') Microsoft could have agreed to give them a $5 discount on each Microsoft product purchased up to the same value. Microsoft announce the licence agreement as part of their FUD storm against Linux/Android and it looks like another manufacturer has folded under the patent 'evidence'.
The point is if they don't state the patents or the terms they are not stating anything. It's not an announcement, news or point of interest. it's all just so much Bullshit.
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