No, Microsoft did not say Android steps on its IP

A spokesperson for Microsoft's legal department confirmed to Betanews this afternoon that a precise legal interpretation of the company's patent agreement announced late yesterday with phone maker HTC is accurate, but interpretations of that announcement that imply Microsoft will charge royalties to HTC for its use of the Android operating system, are inaccurate.

"This agreement covers HTC's use of Microsoft technology that may appear in Android," the spokesperson told Betanews, affirming a specific interpretation of the language that we sought clarification on. As the announcement reads, "Microsoft Corp. and HTC Corp. have signed a patent agreement that provides broad coverage under Microsoft's patent portfolio for HTC's mobile phones running the Android mobile platform. Under the terms of the agreement, Microsoft will receive royalties from HTC." (emphasis ours)

Our interpretation, which Microsoft affirmed, is that HTC will pay royalties to Microsoft for the use of technologies in phones that may (or may not) be adapted for use with Android...or, for that matter, any other mobile OS. Such an agreement enables HTC, for instance, to repurpose phones that were originally engineered for Windows Mobile, and also conceivably reuse software technologies such as HTC's Sense UI (which the manufacturer is already doing), in Android-based phones.

The agreement takes the opposite approach from Apple, which sued HTC last month, claiming that it had misappropriated certain patented technologies from iPhone. Now, with an agreement in hand that effectively acknowledges Microsoft permitted HTC to use certain categories of its technologies -- categories for which Apple claims exclusive rights -- HTC may be able to counter-claim that those claims are not exclusive since Microsoft holds patents for which HTC pays royalties.

So the agreement could help HTC in its fight against Apple. But it does not, as the Associated Press suggested earlier today, make Microsoft a party to the suit, nor does it bring Android into that mess.

The legal distinction here may seem trivial, but from another angle, it's actually colossal: The agreement permits HTC, as Microsoft confirmed to Betanews, to continue to use the technologies it's already using and for which it's already paying and will continue to pay royalties, in other phones besides the Windows Mobile-based models. From that angle, that means Microsoft is not permitting HTC to use the Microsoft technology that appears in Android (assuming it does appear there at all). It means Android may be adapted by HTC for use in other phones that have Microsoft technology.

That's not to say Microsoft does not have outstanding concerns about Android's use of possibly patented technologies, as the company's deputy general counsel, Horacio Gutierrez, told Betanews in a statement late this morning. There certainly are concerns, and they may yet be resolved.

"Microsoft has a decades-long record of investment in software platforms. As a result, we have built a significant patent portfolio in this field, and we have a responsibility to our customers, partners, and shareholders to ensure that competitors do not free ride on our innovations," Gutierrez told us. "We have also consistently taken a proactive approach to licensing to resolve IP infringement by other companies, and have been talking with several device manufacturers to address our concerns relative to the Android mobile platform."

Though Gutierrez did not provide names, of course, one of those other manufacturers may be Motorola. Last year at this time, Motorola suspended its plans to release a certain class of phone, code-named "Heron," for Windows Mobile 6.5, opting to release it during the latter half of 2009 under Android. It never did so, perhaps because an agreement such as the one reached yesterday with HTC, has yet to be drawn.

In June 2007, Microsoft entered into a license agreement with LG, which at the time was said to cover the use of Microsoft technologies in devices that may include Linux. That broad agreement may have been a model for the HTC agreement yesterday, and it may also be covering LG right now. LG officially announced its first Android phones just today, the SU2300 slider and the SU950 widescreen, for debut this spring in South Korea and possibly Europe.

Unfortunately for the conspiracy theorists, the HTC/Microsoft agreement does not appear to be a line-in-the-sand battle against Apple or Google. Rather, it's good news for Android, as it means Microsoft is willing to extend its technology to other platforms (naturally, for a price). The presumption that Microsoft is taking sides against Android supporters, or that it's forcing them to pay Microsoft for their use of Android, is false.


Tim Conneally contributed significant facts and reporting for this story.

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