On Monday, Google announced a new program intended to create an expanding umbrella of protection over its Android operating system and Google Applications pre-installed on devices that meet Android's compatibility requirements. Whether the new initiative will provide such protection, or represents only a “feel good” PR opportunity remains to be seen. If history and what’s visible so far are any indication, the odds tip towards the latter.
The brief announcement (just six paragraphs long), appeared at the Google Blog, and begins as follows:
In Latin, the word pax means “peace.” In the world of intellectual property, patent peace often coincides with innovation and healthy competition that benefit consumers. It is with a hope for such benefits that we are announcing our newest patent licensing initiative focusing on patent peace, which we call PAX.
Under PAX, members grant each other royalty-free patent licenses covering Android and Google Applications on qualified devices. This community-driven clearinghouse, developed together with our Android partners, ensures that innovation and consumer choice—not patent threats—will continue to be key drivers of our Android ecosystem. PAX is free to join and open to anyone.
A link to the PAX website provides only an even briefer description, a list of the nine founding licensors (Google, Samsung Electronics, LG Electronics, Foxconn Technology Group, HMD Global, HTC, Coolpad, BQ, and Allview) - all current Google partners - and a form to fill out to obtain a copy of the cross-license agreement itself, if Google determines that you can be trusted to maintain its confidentiality and use it only for purposes of deciding whether to join. And that’s it.
As earlier noted, there is a long history of patent-defensive efforts by many of the global technology companies that have most enthusiastically incorporated the development and use of open source software (OSS) into their business strategies. Some of those efforts have been real, and some have been launched with great fanfare, but mostly for show.
The first meaningful OSS defensive initiative was Open Source Development Labs (OSDL), founded back in 2000 by companies like IBM, Intel and HP to reassure developers and customers in the face of the veiled threats then being made by Microsoft against users of Linux and other OSS, and in light of the actual (and ultimately unsuccessful) litigation by SCO, perhaps bankrolled by Microsoft, against four companies using Linux.
The OSDL founders paid a million dollars a year apiece to fund that initiative, in part to establish a legal defense fund to reassure developers that someone would have their back if Microsoft went on the attack. OSDL later merged with the Free Standards Group to become The Linux Foundation, which today is bigger, stronger, and more effective than ever, with a broad mandate to preserve, protect and promote Linux and other important OSS (disclosure: LF is a long-term client of mine).
The second major initiative was the creation of the Open Invention Network, founded in 2005. That effort was also strongly influenced by popular concerns over Microsoft patent assertions against users of Linux. That effort was launched by IBM, Novell, Philips, Red Hat, and Sony; NEC, Google and Toyota became top level members in the years that followed. OIN describes itself as “a defensive patent pool and community of patent non-aggression which enables freedom of action in Linux.”
Like OSDL, OIN was heavily funded by its founding members and has a high-powered Executive Director and staff. Over 2,000 organizations have now signed the OIN License Agreement, which you can read here, without having to send in a request to be vetted, or incurring a confidentiality obligation.
And then there are the many efforts that were far less meaningful. Beginning with an announcement by IBM on January 11, 2005, many of the leading IT companies made public “patent non-assertion pledges” to reassure users of Linux (and sometimes other prominent OSS programs) that they would not be sued. Those companies ultimately included Motorola, Nokia, Sun, Google, Oracle and others, each publicly releasing its own slightly different legal pledge, and its own specified list of patents - dozens, scores and even hundreds of them. In the case of IBM, the package included exactly 500 patents, an oddly round number. (The same press release also noted that IBM had filed more patents than anyone else for the fourth year in a row, conveying a rather mixed message to the patent-averse open source community.)
While these announcements made for great air play, they were simply statements of what the companies involved had already decided they had no interest in doing anyway. And while each one stated that it was a legally binding obligation, none of them were irrevocable. Any of the companies could change its mind at any time. It could also sell the pledged patents to someone else who could decide not to be bound.
What all the efforts above had in common, though, was the goal of reassuring reassure customers and developers that moving into the world of open source was a safe thing for a sensible business to do at a time when enemies of OSS were trying to create the opposite impression.
Over time, Microsoft’s hostility abated, and so did the interest of major IT companies in launching major PR campaigns related to patents, despite the astonishingly long list of patent suits involving mobile devices that raged from 2009 through 2012 before petering out.
Why did all of this actual patent aggression lead to no similar defensive patent announcements? First and foremost, because patent threats were being made only against the major handset vendors (and Google), and not anyone’s customers. Second, there was no single, common enemy. And finally, because each of the companies seeking to stake a claim in this enormous new networked opportunity was playing hardball, and for keeps. This did not mean, however, that deals weren’t cut between individual companies, and in fact many cross licenses resulted in the end, whether as a matter of compromise, strategy, or ultimate legal judgments. But they were all done under non-disclosure agreements, and without inviting other companies to join in.
That’s what makes the Google announcement interesting. Clearly it has an opposing company, or companies in mind that it does not want to come to terms with directly. But what is its actual goal? Does it simply have a customer-reassuring PR goal in mind, as its sparse and secretive announcement would suggest?
That would certainly be the logical conclusion, given that there seems to be nothing planned beyond signing up cross licenses. And, in the case of the founding members, one would assume that this new license overlays – and perhaps does not meaningfully add to – the extensive network of patent licenses that is presumably already in place to address the existing commercial relations between the same companies and Google. And there is no mention of any other planned activities, or of any funding of joint activities.
But that still begs the question of why customers need reassurance at all. Oracle has been litigating against Google for years, alleging that Android infringes patents it took control of when it acquired Sun Microsystems. And since Android is based on Linux, the traditional Microsoft claims of patent infringement are still out there as well.
Is Google aware of some new tempest brewing just over the horizon, about to burst into public view? And will any other company names and logos be added to the PAX Community Web page We’ll just have to stay tuned to find out.