Is patent peace possible in our lifetime?
Late this afternoon, in response to Motorola's requested, massive Apple product ban, Dan Gillmore posts to Google+: Come on, Google, don't abuse the patent system the way Apple does. Sheesh". I've seen similar sentiments expressed elsewhere. Gillmore and others are wrong. Google isn't playing Apple's game, but trying to end it. If Apple won't negotiate willingly, a show of force may be the only way to achieve patent peace.
Motorola Mobility is now a Google subsidiary, so legal demand from the one really comes from the other. From one perspective, the request is so sweeping as to dwarf any of the claims Apple makes against competitors like HTC and Samsung. Moto seeks a ban on virtually every Apple device -- iOS or OS X -- sold in the United States. It's reasonable to look at Google and to question whether the tactics are heavy-handed. They are not.
US International Trade Commission received the complaint in late August. Yesterday, the organization agreed to open an investigation. According to ITC:
The complaint alleges violations of section 337 of the Tariff Act of 1930 in the importation into the United States and sale of certain wireless communication devices, portable music and data processing devices, computers, and components thereof that infringe patents asserted by the complainants. The complainants request that the USITC issue an exclusion order and a cease and desist order...Within 45 days after institution of the investigation, the USITC will set a target date for completing the investigation. USITC remedial orders in section 337 cases are effective when issued and become final 60 days after issuance unless disapproved for policy reasons by the US Trade Representative within that 60-day period.
Motorola alleges that Apple violates seven patents, and one of those -- granted about six years ago -- applies to OS X devices, too. An adverse ruling, and worse product ban, would be devastating to Apple without some reasonable workaround. ITC isn't reluctant, either. In May, US Customs seized incoming shipments of HTC's then newly-released One X handset, complying with a patent ruling in Apple's favor. That said, opening an investigation is far from blocking iPads, iPhones and MacBook Airs.
But the threat gives Apple reason to question its patent bullying ways and whether or not an end to hostilities is in order. Motorola's patent attack isn't abuse but attempt to end it. Google wants to bring an end to the patent war by putting reluctant Apple into a position where it must accept cross-licensing agreements. Think rationally. Google doesn't want to stop these products, which people use to consume its services, from shipping. The search giant hugely benefits when consumers use its services on hundreds of millions of iOS or OS X devices.
Google announced the $12.5 billion Motorola Mobility acquisition in August 2011, and it wasn't rocket science then (or now) to see the huge and valuable patent portfolio as major impetuous. As I explained then, Google seeks intellectual property benefits, among others, by:
1. Building up a portfolio that eventually will lead to cross-licensing deals with heavy-hitters Apple and Microsoft, thus ending the most distracting and potentially debilitating claims against Android licensees.
2. Increasing Android licensees' confidence in the platform. As I've stated before, Apple's patent and other intellectual property claims again HTC, Samsung or other Android licensees is about deterrence -- stalling for time.
Two days later, I asked: "Can Google-Motorola Mobility bring stability to the force?". Explaining: "It's not unusual for patent claims to be prelude to cross-licensing deals. Big companies use these to strengthen their intellectual-property portfolios and to fight off patent-troll lawsuits".
Microsoft is the model of cross-licensing deals, which the company uses to protect customers as much as its own interests. Apple has resisted them and only came to the negotiating table with Nokia (and reaching a cross-licensing deal) after being sued. Nokia had the patent chops, the appropriate portfolio, to compel Apple to deal.
Motorola has a well-deserved reputation for being overly aggressive -- yes, trolling -- in its patent pursuits. Google already has started to reign in the beast, meaning: The ITC complaint is not business as usual.
The search giant seeks through its subsidiary to compel Apple to negotiate. Is the threat enough, or will it take an adverse ruling to bring CEO Tim Cook and company to end hostilities affecting Android? We will see. But I don't doubt Google's objectives, meeting force with force to achieve through cross-licensing agreements patent peace in our time.