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Let’s see if we can get all of the players and the moves straight. Apple is suing HTC, claiming patent violations. HTC is suing Apple claiming the same thing. Microsoft is joining Apple in suing Motorola. Microsoft has already extracted a $15 per phone licensing fee from HTC for use of its patents. Apple is suing Samsung. Meanwhile, Oracle is suing everybody who makes an Android phone. Does this sound familiar? It should.
The reason the non-Android phone makers are suing the Android phone makers is because they formed a consortium to buy a bunch of patents from Nortel when it went bankrupt. Because Nortel has been a phone manufacturer for decades, their patents cover some of the most basic technology in telephony.
By acquiring this technology, the non-Android makers have apparently decided to use these patents as a sort of smartphone nuclear weapon. The idea seems to be that if you bury Android makers under enough patent lawsuits, it won’t matter if you can prove that your patent is relevant, because you can kill the weaker party through sheer tonnage of litigation documents.
As Clint Boulton pointed out in his story, this could be collusion in a very big way. All of the major non-Android makers were part of this consortium, including, of course, Microsoft and Apple, but also including RIM, Sony, EMC and Ericsson. If this looks like the big guys ganging up on the little guy (although it’s hard to think of Google as a little guy), that’s what it is. And it may turn out that this unholy alliance is illegal.
The American Antitrust Institute has already asked the U.S. Department of Justice to intervene and to investigate whether this alliance is lawful. The AAI clearly thinks it’s not, and points out that the consortium, which called itself Rockstar Bidco, bid five times as much as Google’s opening bid for these patents. The AAI also noted that the DOJ failed to follow procedure by ending the waiting period for these patent buys to clear earlier than they were supposed to.
The problem is, unless Google can get a judge to issue an injunction on these suits until the antitrust question is settled, the Rockstar members can simply continue to pile one lawsuit on another in an attempt to smother Google in paper to accomplish what apparently the members haven’t been able to do in the marketplace. It doesn’t matter that Google is a big company with plenty of lawyers. What matters is that the Rockstar members will seek a stay on further sales of Android phones and that will put Google in a fight that will consume resources and could interfere with the sale of Android-based phones.