Microsoft: Android Is "Standing on the Shoulders" of Others

It's an increasingly common refrain these days: Google's dominant mobile platform, Android, is a rip-off of other mobile platforms, and since Google doesn't even have a broad slate of mobile patents of its own, the company is effectively stealing from others. Steve Jobs made this claim, posthumously in his recently released biography. And now Microsoft is accusing Google of stealing as well.

In the wake of a Microsoft blog post describing how more than half of all Android devices now carry a Microsoft patent-licensing fee, Microsoft Deputy General Counsel Horacio Gutierrez told The San Francisco Chronicle that Google is simply "standing on the shoulders" of Microsoft and others by using without license a slew of their patented technologies in its own product.

Guiterrez also spells out a few mobile industry patents that Microsoft owns—like phone-to-server sync—and dispels as myth the notion that the patent industry needs to be reformed. Instead, it's working exactly as it should, he says.

"As we've seen historically ... every time there are these technologies that are really disruptive ... there is a period of unrest and a period of readjustment, until the claims on the ownership of different pieces of technology are well known," he said. "There's a period of actually licensing and cross-licensing that makes these issues disappear into the background ... That's the situation we're in right now."

"Licensing is not some nefarious thing that people should be worried about," he adds. "Licensing is, in fact, the solution to the patent problem that people are reacting so negatively about."

Pushed further about patents and patent licensing, Gutierrez explains that people often misunderstand how patents work when they argue that "an idea" shouldn't be patentable. "It's not the idea or the final outcome that is patentable; it's the particular way in which the outcome is brought about," he explained. "So two different means of getting to the same end would be independently patentable."

Microsoft's reaction to Google's unfettered use of its patented technologies is a lot calmer than that of ex-Apple CEO Steve Jobs. In his biography, Jobs is quoted as describing Android as "grand theft" and "a stolen product," and he vowed to pursue Google until his death.

(Readers are likely familiar with my own similar claims about Android. I've argued many times that Android is indeed stealing from many others. In early August, I wrote that Google essentially stole the major technologies used in Android and then "dumped" the resulting product in the market by giving it away for free. In this way, Google unfairly and unlawfully achieved market dominance, a situation I felt warranted a federal antitrust investigation. Still do.)

Google, of course, announced its intention to purchase Motorola Mobility in August, largely to obtain the company's 17,000 mobile industry patents, which could give the online giant a cross-licensing bargaining chip going forward. Whether this sort of retroactive protection, coming several years after the start of the Android project, is valid and lawful remains unclear.

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