Apple Couldn't Sue Google for Open-Source Android

By Clint Boulton  |  Posted 2010-03-03 Print this article Print

One of the prevailing theories behind why Apple is targeting HTC in a patent infringement suit that largely targets phones running Google's Android operating system is that, well, HTC made the phones.

We can pontificate to our hearts' content about how the real target here is Android. If Android is life's blood of the smartphones that challenge Apple's iPhone, the gadgets themselves are the bodies. No bodies, no blood, or something like that.

The funny thing is that while HTC owns the bodies in this case, Google doesn't really own the blood in them. Android, of course, is open source. Google's presence, then, is philosophical, perhaps spiritual if you tend to the metaphysical.

This point was called to my attention by Gartner analyst Ken Dulaney, who has seen his fair share of lawsuits involving warring mobile device makers. He told me March 3:

I would have to agree its ultimately an attack on Google. But suing HTC may be a result of the implementation issues. One reason would be that Google doesn't really "own" Android. It's a nebulous environment under the control of the Open Handset Alliance who manages the open-source pool. So until it's put on a phone, there is no target to attack. Suing Google wouldn't make sense, since they really don't control it. It's the OEMs who choose the particulars.

That is why Apple's legal hammer falls on HTC in the legal venues of the International Trade Commission and Delaware courts. The New York Times has the best analysis of the Apple vs. HTC case's legal ramifications here.

Dulaney said the lawsuit, which involves some 20 patents, including those for multitouch pioneered by the iPhone but leveraged on HTC-made devices such as the Nexus One, will go on for a long time.

According to Dulaney (with my comments in parentheses), the only thing we know for sure is:

  • Consumers will pay for the enormous lawyer fees that are sure to be consumed by this litigation. (Expensive phones and data services, anyone?)
  • As we learned from the RIM/NTP lawsuit and from the Visto lawsuits on wireless e-mail sync, this is a game of brinksmanship until someone breaks. (Google and Apple have billions to play with, but HTC doesn't.)
  • We tell customers to totally ignore this. Phones have a two-year primary useful life and a reasonably good transferability for core applications between OSes (e.g. you always sync your e-mail and PIM to a server so you can move from phone to phone relatively easily).
  • If a customer is concerned about this, build applications in the browser. (So it all comes back to Web apps, which is where Google wants to live, work and play anyway.)

Google doesn't want to make the hardware, and it only began selling the Nexus One itself so it could more tightly control what was offered on it, as well as the distribution method.

With Android, Google is content to challenge Apple only so far as it wants more mobile Web real estate.

It will be interesting to see whether HTC will be prevented from making Android phones that people will want to use because Apple has locked up the best smartphone technology, or whether Apple will pursue Google more aggressively on some front.

Google won't stand idly by. The company told me and everyone else who has asked that while Google is not a party to this lawsuit, "we stand behind our Android operating system and the partners who have helped us to develop it."

If the gloves weren't off before, they are now. |

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