John Paczkowski

Recent Posts by John Paczkowski

Microsoft to Google: Enough With the Diversionary Tactics, Let’s Hug It Out

Microsoft is more than happy to take Google and its Motorola subsidiary to the mat over their alleged patent infringement, but it would much prefer to settle its differences with the companies more amicably.

That’s the message today from Microsoft General Counsel Brad Smith and Horacio Gutierrez, head of the company’s intellectual property group. In a co-authored post entitled “A Solid Foundation for Patent Peace,” published this morning, the pair formalized some internal thinking that’s been going on since May and called on Google and Motorola to join it in hammering out a comprehensive settlement of intellectual property disputes between them.

“With its phones and tablets now subject to injunctions in the U.S. and Germany, Google can no longer doubt the relevance of Microsoft’s patent portfolio to Motorola’s products,” Smith and Gutierrez wrote. “Google can take one of two paths: It can choose either to engage in serious discussions to search for patent peace or persevere in its diversionary tactics. We hope it will choose the first course, and we stand ready to engage in good faith if it does.”

A reasonable appeal, but one offered with a number of important caveats.

First, the companies must ink a comprehensive agreement that covers all allegedly infringed patents. “Any approach that does not lead to the cessation of all the pending litigation will be short lived. Motorola’s public proposal to take a license for only a small sub-set of the large number of Microsoft patents used in its products will not result in durable patent peace,” Smith and Gutierrez argue.

Second, Google must honor its obligation to license Motorola’s standards-essential patents on fair, reasonable and non-discriminatory terms (FRAND), adopting the same “market rate” fee schedule that Microsoft argues is now standard in the industry.

If Google embraces these “two simple, common sense principles,” Microsoft is more than willing to settle its patent litigation with the company. But it’s skeptical that Google will ever do so.

“Google mounted a public relations and lobbying campaign deflecting attention from its refusal to honor its promise to standards bodies to license standards-essential patents on fair, reasonable and non-discriminatory terms, a practice that has prompted regulators on both sides of the Atlantic to investigate its conduct,” Smith and Gutierrez write. “Unfortunately, we have no reason to believe that Google’s diversionary tactics will cease any time soon, and in fact expect more of them in the future.”

Google deferred a request for comment to Motorola Mobility which issued the following statement:
“Microsoft wants to undercut Motorola’s industry-leading patent portfolio, licensed by more than 50 other companies on fair and reasonable terms, while seeking inflated royalties tied to standards that Microsoft alone controls. Motorola is always open to negotiations that avoid wasteful and abusive patent claims.”


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I think the NSA has a job to do and we need the NSA. But as (physicist) Robert Oppenheimer said, “When you see something that is technically sweet, you go ahead and do it and argue about what to do about it only after you’ve had your technical success. That is the way it was with the atomic bomb.”

— Phil Zimmerman, PGP inventor and Silent Circle co-founder, in an interview with Om Malik