back to article Microsoft rejects Google-Moto patent pact proposal

Microsoft has rejected a proposed offer by Motorola to settle patent disputes between the two companies that threaten to stop the flow of Moto's Android kit and Redmond's Xboxes and Windows gear into the US. This is after the software giant said it reckoned that Motorola was looking for "excessive" royalties. Both Microsoft and …

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Meh

pot, kettle

Like that Microsoft Tax they are seeking from every Android manufacturer because of VFAT long filenames which became a pseudo standard due to their monopoly position. Serves them well to be on the receiving end of this.

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Facepalm

Not quite stalemate

You can remove ActiveSync from android and your phone will still work, although your corporate email will stop. (until you start using a 3rd party piece of software) This isn't too much of a headache. But i wonder what would happen if you removed the wireless and video tech from the xbox.

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Google are going to get royally screwed over this

Motorola agreed to license these patents under FRAND. Now they're demanding WAY over what they could possible expect from FRAND licenses (even the new "50c" offer for windows is probably out by a factor of 50+!).

Problem is, they're trying to use these patents to get MS and apple products banned from sale by withholding a license for essential technologies (it's not just H264 video, it's also WiFi and GSM). Keep in mind that you can't build a product that makes phone calls, connects wirelessly to the internet or plays standard video without using these patents, and if they're allowed to get away with it they can basically control any technology company by making an offer that's simply unacceptable then getting the products banned.

End result: The EU is formally investigating them for market abuse, and the US is heading that way very quickly. They'll likely end up with serious restrictions and multi-billions in fines... just like MS back in the days.

The good news: no courts are actually buying google's line on this, outside of germany (where the patent system is so screwed it makes the US look fantastic).

So yes, google are the new MS :D Weirdly if you look at what MS are actually doing with patents, despite plenty of bad press they actually look like the 'good guys' for once. It's motorola/google and samsung (pulling the same trick) being evil this time round.

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Re: Google are going to get royally screwed over this

i'm not sure how you can say microsoft are being the good guys here? Didn't this whole drama start over Microsoft collecting money on each Android device sold etc.

Mind you I do agree that playing around with FRAND is going to get you slapped down.

I am curious as to who decides that FRAND applies to a patent as that could be rather annoying for a company to have to licence its patent out for 1p when a stupid patent on something obvious (slide to unlock etc) can go for several £ per device.

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Anonymous Coward

Re: Google are going to get royally screwed over this

MS are licensing their patents out to the android makers - which for stuff they've perhaps spend many millions inventing is fair enough, and where it's gone to court the courts have generally agreed with them.

Compare that with apple, and you'll see a big difference: apple aren't licensing, they're asking the android makers to remove features that apple have patented or asking the courts for the same thing. Basically they don't want android copying iOS (which is fair enough I guess), but that means android can't have slide-to-unlock, nice scrolling and such.

Also, both apple + MS have said that any patents essential for things like 3G, H264, WiFi and so on have to be licensed under FRAND, can't be used to get anything banned, and have to be charged at a low rate. This is good for everyone, because it means if you want to make a phone you're not going to be held up at gun point because it can make calls (which is exactly what samsung and motorola are trying to do).

If you look at their statements on FRAND and patents in general, MS's is actually the most reasonable. Apple is a close second. Google's is the worst by a long way - they don't want to honour their FRAND pledges basically.

As to how patents are declared FRAND or not? It's simple - when a standard is set up (say for 3G phone networks), the standard setting organisation (ETSI or whoever) asks companies to join. If they want to join, they have to declare all patents they have that apple, and they have to agree to license them all under FRAND. This way if you make a 3G phone, you know exactly what patents you have to license, and you're guaranteed a license at a fair rate. The standard is open to everyone, and it's not prone to "patent ambush" and the like, so everyone gets behind it and uses it, and we don't have a hundred incompatible proprietary systems instead.

Unless of course a big company like samsung or google/motorola decides it wants money and power instead of an open standard and starts some patent abuse up, and the regulators have to step in and give them a good kicking :D

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Re: Google are going to get royally screwed over this

FRAND terms generally apply to something essential to implement a standard.

Slide to unlock is a) not a standard de jure, although it may well be de facto and b) non-essential to the device, there being umpteen ways to skin that cat. Whether something that trivial and obvious should be patentable at all is arguable, but it's definately not a candidate for FRAND licensing.

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Anonymous Coward

Re: Google are going to get royally screwed over this

"They'll likely end up with serious restrictions and multi-billions in fines"

Really - multi-billions? Is this the same multi-billions that SCO were going to get from Linux Users, or is it the mysterious multi-billions that Oracle were going to get from Google? It's hard to track down this elusive multi-billion that will be the result of every American technology court case and will finally kill off FOSS for good.

If you think Microsoft are the good guys, read up the details of the Barnes and Noble case and work out why Microsoft pretty much settled out of court.

Also remember that H264 were proposing the get a patent pool together to crush WebM and spread enough FUD to make it a non-starter.

As for any of Apple's recent litigation being 'fair enough' - that is just laughable. Everything that Apple has done in the iphone is a copy of something else with enhancements and improvements, same as every other device copies and enhances. It's how technology works - especially software. It's how it has forged ahead in the last 30 years and why we are currently living in a technological revolution.

Apple hasn't shown the technological advancement that was first seen at Xerox Parc with true innovation.

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Re: Google are going to get royally screwed over this

"Really - multi-billions? Is this the same multi-billions that SCO were going to get from Linux Users, or is it the mysterious multi-billions that Oracle were going to get from Google? It's hard to track down this elusive multi-billion that will be the result of every American technology court case and will finally kill off FOSS for good."

Maybe multi-billion was OTT, but remember the last big anti-trust case? MS were fined well over a billion. And what's this got to do with FOSS?

"If you think Microsoft are the good guys, read up the details of the Barnes and Noble case and work out why Microsoft pretty much settled out of court."

The barnes + noble case where their anti-trust accusations against MS were thrown out by the court, then they agreed to drop the litigation (which B+N was likely to lose) and work together on a new venture? I'd say that was a good outcome.

"Also remember that H264 were proposing the get a patent pool together to crush WebM and spread enough FUD to make it a non-starter."

That would be because WebM was based on a lot of patented work, which the companies involved would have spent huge amounts of time + money on. It's reasonable to expect some money in return when you do that, and you can't sell advertising in a video codec. Google made a huge mistake with WebM - they assumed that they could take what was obviously a codec covered by a lot of existing patents, ignore the fact, and offer it for free. It predictably backfired.

"As for any of Apple's recent litigation being 'fair enough' - that is just laughable. Everything that Apple has done in the iphone is a copy of something else with enhancements and improvements, same as every other device copies and enhances. It's how technology works - especially software. It's how it has forged ahead in the last 30 years and why we are currently living in a technological revolution.

Apple hasn't shown the technological advancement that was first seen at Xerox Parc with true innovation."

Nice work on the trolling, but I'm not biting :)

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FAIL

Re: Google are going to get royally screwed over this

@Chris 19: If you would know how MS hacked that long filename support together, you wouldn't say stupid things like the millions they spent to invent it. The whole VFAT should bee FRAND as well, and MS should stop extorting all that money out of companies that try to be compatible with MS crapware. MS should be happy anybody wants to support VFAT and its hacks.

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Re: Google are going to get royally screwed over this

"MS are licensing their patents out to the android makers - which for stuff they've perhaps spend many millions inventing is fair enough, and where it's gone to court the courts have generally agreed with them."

Except its hard to confirm that because they wont allow anyone to talk about what patents they are licencing etc.

"Also, both apple + MS have said that any patents essential for things like 3G, H264, WiFi and so on have to be licensed under FRAND, can't be used to get anything banned"

Of course its not surprising that they would take this stand as they generally don't own as many of those patents.

"If you look at their statements on FRAND and patents in general, MS's is actually the most reasonable"

I know Microsoft were big on their FAT patent which cost a lot of manufacturers

"Basically they don't want android copying iOS (which is fair enough I guess), but that means android can't have slide-to-unlock, nice scrolling and such."

Ah but IOS was happy to take the drop down notification bar a release or two ago....

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Re: Google are going to get royally screwed over this

When any international standard under ISO, IEC or ITU is in the progress of development, contributing companies are asked to identify any patent that reads on essential parts of that standard. They have the choice of confirming that they intend to licence it on Fair, Reasonable and Non-Discriminatory terms, or confirming that they don't. In the latter case the working group will then attempt to work around the blocking patent.

Video encodings are, unusually, typically developed under the umbrella of both ISO/IEC Joint Technical Committee 1 and ITU - JTC1 covering the IT angles and ITU interested in broadcasting. MPEG is a working group of ISO/IEC JTC1. H.264 is the ITU's code for the standard, ISO/IEC calls it MPEG-4 Part 10 Advanced Video Coding (AVC) and published it as ISO/IEC 14496-10.

The ISO/IEC/ITU common patent policy is at http://www.itu.int/en/ITU-T/ipr/Pages/policy.aspx .

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Re: Google are going to get royally screwed over this

"@Chris 19: If you would know how MS hacked that long filename support together, you wouldn't say stupid things like the millions they spent to invent it. The whole VFAT should bee FRAND as well, and MS should stop extorting all that money out of companies that try to be compatible with MS crapware. MS should be happy anybody wants to support VFAT and its hacks."

Yeah, I totally agree on that (especially that FAT should be a regulated standard subject to FRAND at the least). And I'm well aware of MS's past evilness ;) I'd have classed myself as a 'microsoft hater' in the past because of just that, but in all honesty what they're doing recently gets a weak thumb up. (Weak because it's still bad, but hey, it's business and you have to expect some of this. Up because it's actually better than what apple + google are doing.) This has come as something of a surprise to say the least!

There ARE worthy patents though, that are genuinely innovative, took lots of effort to come up with, and should be protected. The courts generally do a good job of separating the wheat from the chaff (the failure rate in court for these patents is probably 90%!). MS have been working on OSes (and phones and tablets) for a very long time, as derivative as much of their stuff is, they've still got a pretty huge number of 'good' patents.

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Re: "you know exactly what patents you have to license"

Certainly not agreeing with moto/google's stance. But if they know they need these why does it take them years to get around to licensing them. Anything I make/sell I make sure know how much it's going to cost before hand. Plus don't forget that other companies have licensed these for similar amounts.

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Anonymous Coward

Re: "you know exactly what patents you have to license"

@vic 4 Nobody has licensed these patents for 2.25-2.4% of the retain price of the product, which is what samsung + google/motorola have been asking. Nobody has been stupid enough to agree to it (and they've been asked which companies have paid this in court - the answer was zero).

Consider what that actually means. Say you build 3G into a luxury car at $50k, for the GPS system to get updates + traffic info. That will be 2.25% of the $50k, or $1125 just to implement 3G. Both samsung and google have 3G patents, and this 2.25% is just for one, so you can double that figure immediately. No add the other 100-odd 3G patent holders, and you're over $100k in patent license fees, just to add 3G to a $50k car. It has a video player in the back seats for the kids? Another $100k please! GPRS as a backup to 3G? Another $100k!

It's pretty obvious why MS, Apple etc. are going to court rather than pay up ;) And obvious why the regulators thing this is out of order.

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Anonymous Coward

Re: Google are going to get royally screwed over this

"The barnes + noble case where their anti-trust accusations against MS were thrown out by the court, then they agreed to drop the litigation (which B+N was likely to lose) and work together on a new venture? I'd say that was a good outcome."

Hmm, actually read the case, evidence that was public and transcripts rather than what Florian tells you.

If B&N were 'likely to lose' then there is no way Microsoft would've rolled over like they did. The terms they were trying to enforce and the patents were farcical. Way, way worse than anything even Apple had tried.

"That would be because WebM was based on a lot of patented work" - that is the point of patented work to publicly disclose the workings to allow others to technically advance. If you are saying it actually included patented methods then why haven't they been sued? WebM is still out there, gaining in popularity.

"Nice work on the trolling, but I'm not biting :)" Hardly trolling, I don't think I can see any actual major innovation in my iPhone. The way it works, the design (at the time), what it brought to the market, the ecosystem is what made it so great. But actual innovation worthy of a patent? Can't see any.

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Re: Google are going to get royally screwed over this

"Also remember that H264 were proposing the get a patent pool together to crush WebM and spread enough FUD to make it a non-starter."

H.264 is a standard issued by the ITU, developed in the open, jointly with ISO/IEC who publish it as MPEG-4 Part 10 AVC (14496-10). 'H264' cannot propose anything commercial; the working group deals only with updates to the specification for a limited range of compatible extensions. They only get involved with patents to the extent that if anyone declares that they have a patent, and they're not willing to licence it on a free or FRAND basis, the working group must work around that patent's claims.

*MPEG LA*, who administer the patent pools for MPEG-2, MPEG-4 Visual and SMPTE VC-1 (aka Microsoft's Windows Media Video) as well as H.264/MPEG-4 AVC, proposed forming a pool for WebM. The patent pool allows anyone who wants to implement the standard to get a licence for all of the patents which are claimed to be essential from one place, rather than (as for H.264) separately negotiating with 29 different companies and organizations.

As WebM is not an open standard under an independent standards organization, there is no requirement for anyone to disclose what patents they might have that are essential to its implementation. The idea of forming a patent pool was again to create a one-stop-shop for licensing all necessary patents, with the fees (less a portion for MPEG LA's administration charges) going to the patent holders. The licence fee would be set by negotiation between the patent holders but I'd be surprised if it was far from the 20 cents per decoder for AVC or VC-1 (reducing to 10 cents after the first 5m units per year, capped at $6.5M per year for AVC/$5M for VC-1), 25 cents for MPEG-4 Visual, or $2 for MPEG-2. Is that enough to 'crush' WebM? Probably not, though Google's aim in buying it was to provide something that would be acceptable to W3C. W3C's patent policy requires royalty-free licensing, which is why H.264 is not acceptable to them as a mandatory codec.

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Stop

@pro MS Crhis XIX

>>WebM was based on a lot of patented work, which the companies involved would have spent huge amounts of time + money on

Please, stop. You've got enough of nonsense for today

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Anonymous Coward

Re: Google are going to get royally screwed over this

Petur, you really need to learn the legal concepts involced and stop demonstrating your sublime ignorance. Start by research what FRAND is and why it exis as a concept. Then you will realise why your comment was so moronic.

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Maybe Google/Motorola should .......

....... consider the risks of pushing these charges through. Steve B is loco enough to just whip out his American Express and buy Nokia just to have a portfolio of patents to hit back with.

This is now just becoming an epic willy waving contest, who has the biggest patent portfolio. Put the damn things back in your pants guys and get on with the business of making shiny for us to play with.

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Anonymous Coward

Re: Maybe Google/Motorola should .......

Yep, and apple bought a massive bunch of 4G patents a while back (along with MS and others). MS have pledged to never use standard-essential patents to get products banned though (see, they're looking like the good guys again, weird innit?!).

Apple said they'd only do it in retaliation, but they've not done so yet. Possibly because the only country to consider product bans on FRAND patents is germany, maybe germany doesn't have 4G yet and apple's patents are mostly 3G related? Although they're sure to have plenty of video patents that are standard essential.

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Mushroom

Good god, why do none of you morons understand how FRAND works?

Here is how a patent becomes FRAND: the patent owner submits it for inclusion into a standard being put together by a standards organization. That's it, that's the one and only way. Companies don't have their patents made FRAND against their will, they do so VOLUNTARILY and are under no obligation to do so. There is no method by which patents can become FRAND against the wishes of the patent owner. But once you submit it there's no changing your mind about that. No takebacks, even if Motorola wishes there was so they could single out Microsoft and Apple for much higher royalties than anyone else pays (if nothing else violating the 'ND" non-discriminatory part of FRAND)

If the 5G standard was being put forward tomorrow, and it could work via method A and method B, and I had a patent without which method A could not be made to work, I would have two choices. One, submit my patent for inclusion in the standard, and if method A is chosen, get perhaps a penny for every 5G phone sold in the next decade or two. Two, choose to keep my patent to myself, in which case the standards organization would have no choice but to go with method B, in which case I'd probably never make much from my patent unless it was useful for something else I did, or I could find someone infringing and collect royalties from them.

So quit your whining about how poor Motorola is getting screwed because they have FRAND patents while Apple and Microsoft's patents are not FRAND. VFAT is a stupid patent which shouldn't have been awarded, but it sure as hell shouldn't be FRAND, because Microsoft has never submitted it to any standards organization. It may be seen as "de facto standard" by some, in that for some reason Android makers feel it necessary to support VFAT. But just because others feel it is useful, or even essential, or as much of a standard as 3G is, doesn't mean that the patent becomes FRAND by popular demand. That's not how it works.

If Android vendors really are paying MS $5 per phone or whatever it is for that one patent, that's their own damn fault. No one is making them use VFAT, and it is certainly not integral to Android (which, being Linux, probably uses ext3 or something internally, or should if it doesn't) Since neither MS or anyone else has ever fessed up to how big the license fee is and what it covers, the talk about VFAT is all speculation anyway.

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Trollface

Cowboys Versus Aliens

Where there’s gold – them miners will come a callin' with thur guns and knives.

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