The Standards Blog

The Lurching Landscape of Mobile

Intellectual Property Rights

Anyone paying attention to technology news lately knows that the Titans are clashing for control, or at least a share of the monetary rewards, of the mobile marketplace.  When technology historians look back on this era, they'll likely see this as a time when the tectonic plates suddenly shifted, wrenching apart corporate monopolies and rearranging the terrain upon which the next great age of technical innovation and adoption will play out.  These sudden shifts have predictably sent tremors reverberating across the competitive landscape.

The least violent of these actions have involved acquisitions of patent portfolios at eye-popping valuations (the Nortel and Novell patent sales provide prominent examples).  They have also included large cross license agreements, such as the recently announced deal between Microsoft and Samsung.  More forceful shocks have emanated from several recent lawsuits between vendors, such as the one launched by Oracle against Google.  One immediately notes a common thread in much of this seismic activity:  it's all about the operating system.  Why?  Because whether on OS is open or closed, and in the latter case who holds the keys, dictates so much about whose forces will prevail on a computing platform landscape increasingly dominated by smartphones, tables and other mobile platforms.

It's worth noting that the force and impact of the tremors generated by these events varies, depending on the tactics chosen by the participants.  Where a patent portfolio is purchased and its elements disclosed (as with the Novell patent sale), it's possible to project the possible consequences of transferring patent claims known to have been asserted in the past to a new owner that may have a different strategy and relationship to the marketplace.  It may also quickly become clear which previously un-asserted patent claims will now introduce stress.  In this regard, Oracle's decision to assert the patents it acquired from Sun against the Android marketplace leaps to mind.

But in the case of cross licenses, the effects are more obscure, and this is the case with the Microsoft-Samsung cross license, because few of the details (and none of the pricing terms) have been announced, leaving commentators (as well as those directly affected) to wonder what the post-deal world really looks like, and what it means to whom. 

These questions were recently explored by Steven J. Vaughan-Nichols in an article at ZDNet.com.  In reply to a request from Steve to comment on how to read the tea leaves, I replied as follows:

I think that there are a few things to focus on when you read such an announcement:

- Was it a Linux only license? Note that in this case, Linux was only one element of the deal. The Linux only deals are sometimes between Microsoft and small companies that have little to gain by litigation.

- Was it a one way license, or a cross license as well? If it’s a cross license, then the importance - or validity - of the Linux elements may be low as it’s part of a larger package, perhaps one that covers all of the patents of both parties.

- And finally, as always, note that the terms are never revealed, so the amount of money that may be changing hands may not only be low or high, but may also be calculated primarily on the basis of other patents besides the Linux-relevant ones.

Not all of the news, however, has directly involved two specifically linked parties, and for an example of this gambit, I turn again to a ZDNet.com article by Steve, in which he speculates about the intended targets of a decision by Microsoft to lock down OEMs (original equipment manufacturers, like Dell) more tightly when they sell devices pre-loaded with Microsoft's new Windows 8 platform.  Steve wrote:

Thanks to Mary Jo Foley, we now know that in the name of “security,” Microsoft will be trying to use UEFI (Unified Extensible Firmware Interface) to block Linux, older versions of Windows, and other alternative operating systems from booting on Windows 8 PCs. 

Steve goes on to conclude that the announcement may have more to do with forcing adoption of its new OS than blocking customers from swapping out what came on their new device for a competing OS.  He asked me for comment on the piece, and, while stressing that I don't know any details beyond what he included in his article, I offered the following:

-  It doesn't strike me that this is much about Linux.  Your points about prior versions of Windows sound spot on, especially given Linux's minimal footprint on the desktop.  And it's hard to imagine that it's intended to take a poke at Apple, since who uses an Apple OS that doesn't want to run it on Apple hardware?  It would be interesting to know what effect this would have on people that want to have  dual boot machines of both types (Windows/Apple and Windows/Linux), however.  At minimum, I would assume that it would also make setting up a dual boot machine much more difficult as well.

-  An unintended consequence I can imagine is that more vendors OEMs will now have to think about selling Linux machines to those that want them, rather than just think about offering ones that are pre-loaded with Linux.  This assumes, of course, that there is a big enough market to make it worth their while.  I don't have the data on this (e.g., does anyone buy netbooks any more?), but if the demand is high enough, then the Microsoft decision will actually have a positive effect, given that prior "toe in the water" trials by vendors (e.g., Dell) selling pre-loaded Linux machines didn't last long.

-  On the regulatory front, this strikes me as being primarily of potential interest to European regulators, given their previous stance on pre-loaded Explorer.  That said, the OS is so important to the total product that one might fairly conclude that the vast majority of the market would prefer to buy the OS preloaded on anything they buy rather than having to deinstall and install an OS in order to end up with what they want.  The argument would therefore have to be that the new Microsoft-required security settings make this much harder to do, and the critical question would be whether significantly fewer people would be sufficient skilled to pull it off.

Of the above, perhaps the last comment is the most interesting.  In Microsoft's wild and wooly 1980s and early 1990s, it was incredibly aggressive with the terms it imposed on its OEMs, benefiting it both on the OS as well as the application fronts.  Regulators in the U.S. and the EU piled on, and a much more cautious Microsoft was the result. 

Microsoft's current legal team is very bright, and one has to assume that it will be more than cautious when it comes to imposing restrictions on its downstream partners.  For example, one assumes that this time around, OEMs will not be barred from selling computers with other OSs or software loaded.  Still, anyone can make mistakes, and Microsoft's competitors have not been shy about crying Foul! to the regulators in the past in the EU (nor has Microsoft, in response to actions by companies such as IBM that it has found objectionable). 

It will be interesting to see what regulatory response from the regulators this most recent move elicits.  The regulators have already closely monitored, and in some cases imposed conditions on, some of the other events referred to above (e.g., the acquisition of Sun by Oracle, and the sale of patents by Novell).  One assumes they will pay attention to these new restrictions as well.

 
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