Google challenges Lodsys but Android faces legal firestorm over source sluggishness

Aug 15, 2011
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Google has further waded into the ongoing mobile patent saga, joining Apple in calling for re-examination of IP it argues should never have been granted in the first place. "We’ve asked the US Patent Office to reexamine two Lodsys patents that we believe should never have been issued" the search giant's general counsel Kent Walker told Wired, referring to the same company targeting iOS developers over what it alleges is misuse of in-app payments systems. However, there are also fresh reports that poor handling of source code release by OEMs using Android have, in fact, left them in violation of the GPL v.2 open-source license, and have as a result lost their Linux distribution rights.

On the Lodsys front, Walker says that "developers play a critical part in the Android ecosystem and Google will continue to support them"; earlier this year, Android developers began to receive IP infringement warnings alleging they had used technology detailed in patents 7,222,078 and 7,620,565. Although Google - like Apple and others - have license agreements in place for the use of the in-app payment technology, Lodsys argues that each individual developer should also have such an agreement.

Apple's stance is that its licensing covers its developers and has filed appropriately; Google has gone straight to the USPTO to have the patents overturned. Lodsys did not create the initial technology nor file the patents itself, instead purchasing them at a later point. However, EFF patent expect Julie Samuels warns that "its rare that an entire patent is invalidated through the USPTO" and that "more likely is that the claim of the patent will be narrowed." Even if a re-examination is approved, it's not automatic that ongoing litigation around the patent is frozen until the validity is confirmed; instead, Google's approach could end up costing affected developers more money as they fund legal teams in the interim.

Google's own legal budget is unlikely to be helped by news that just about every Android OEM has fallen foul of the GPL v.2 license, by failing to release the source code their devices rely upon. More than just the genial formality that many dismiss it as, FOSSPatents reports, in not coughing up the code those manufacturers have legally voided their position as distributors of the underlying Linux software Android is based upon.

"4. You may not copy, modify, sublicense, or distribute the Program except as expressly provided under this License. Any attempt otherwise to copy, modify, sublicense or distribute the Program is void, and will automatically terminate your rights under this License. However, parties who have received copies, or rights, from you under this License will not have their licenses terminated so long as such parties remain in full compliance" GPL v.2 license

To correct that, each manufacturer would need to renegotiate licensing with the original rights holders, an eye-watering task when you consider the number of contributors involved. In the meantime, each one is free to stage a legal complaint and seek the sort of injunction we've seen applied against Samsung's Galaxy Tab 10.1 in Europe.

The situation is arguably more dire when Android 3.x Honeycomb is taken into account, with Google's sluggishness to release the source code itself - and OEMs generally proving similarly tardy - posing significant open-source issues claims lawyer Edward J. Naughton. He points to the fact that, if you are following the GPL to the letter, you should release the source code simultaneously with any GPL-licensed software in an executable format being distributed.

It's unclear whether Android device manufacturers poor performance in releasing timely source code is down to a lack of clarity over the GPL or a sense that "open-source" makes for good taglines but is otherwise not something to be bothered about. Unfortunately, no matter how many patents Google acquires through its $12.5bn acquisition of Motorola, the collective actions of it and its manufacturing partners have opened up another potentially huge avenue of lawsuits.


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