A few days ago, on March 21, Microsoft sued Barnes & Noble, Foxconn, and Inventec for patent infringement by Android devices they either produce or market.

Immediately, everyone, and man+dog, started weighing in on the ridiculousness of software patents and decrying Microsoft’s moves to defend its lawfully-obtained patents.

Incredible!

Lost in the hubbub was the fact that Microsoft has, on several occasions, being the recipient of such lawsuits, and had paid out billions of dollars based not only on direct infringement, but on third-party infringements brought about by it’s (Microsoft’s) indemnification of its ecosystem partners.

Hypocritically, most of the people complaining about Microsoft’s assertiveness of its patents were the same ones that snickered when Microsoft got docked for hundreds of millions just recently, during a legal loss to a patient troll.

What is going on here?

According to the Microsoft presser:

REDMOND, Wash. — March 21, 2011 — Microsoft Corp. today filed legal actions in the International Trade Commission and the U.S. District Court of the Western District of Washington against Barnes & Noble, Inc. and its device manufacturers, Foxconn International Holdings Ltd. and Inventec Corporation, for patent infringement by their Android-based e-reader and tablet devices that are marketed under the Barnes & Noble brand.

“The Android platform infringes a number of Microsoft’s patents, and companies manufacturing and shipping Android devices must respect our intellectual property rights. To facilitate that we have established an industry-wide patent licensing program for Android device manufacturers,” said Horacio Gutierrez, Corporate Vice President and Deputy General Counsel for Intellectual Property & Licensing. “HTC, a market leader in Android smartphones, has taken a license under this program. We have tried for over a year to reach licensing agreements with Barnes & Noble, Foxconn and Inventec. Their refusals to take licenses leave us no choice but to bring legal action to defend our innovations and fulfill our responsibility to our customers, partners, and shareholders to safeguard the billions of dollars we invest each year to bring great software products and services to market,” he added.

The patents at issue cover a range of functionality embodied in Android devices that are essential to the user experience, including: natural ways of interacting with devices by tabbing through various screens to find the information they need; surfing the Web more quickly, and interacting with documents and e-books.

So basically, it is another salvo at Android for infringement.

Legally, just what is this?
Mentioned here are 5 patents.

Florian Mueller runs FOSS Patients. He breaks down the issues involved in this blog post.

Though Florian does not believe in software patents, he makes several statements concerning Microsoft’s position regarding patents and their enforcement:

HTC, Amazon.com and any other licensees compete with Barnes & Noble's Nook. For Amazon.com, Barnes & Noble is a particularly relevant competitor. If Barnes & Noble refused to pay (which is what Microsoft says), it's actually a matter of fairness that Microsoft enforces its patents because otherwise those who respect Microsoft's rights would be at a competitive disadvantage versus non-paying infringers. I would personally prefer for no such patents to be granted in the first place -- but if they exist and are enforced, which is the law of the land, then there must be a level playing field. A lawyer working for various companies paying patent royalties told me last year how important it is that everyone in a given market has to pay royalties or, alternatively, no one. Florian Mueller, FOSS Patents

This makes Microsoft’s actions pretty clear: it must preserve value in its patents to licensees who have paid for the privilege.

However, one wonders, how did it get to this?

Well, Android, as currently constituted, infringes on the intellectual property of others in several ways. One of them is parent company Google’s insistence on willfully misappropriating the properties in question by making blatant copies, such as the Davlik VM – for which Google has been sued by new Java owner, Oracle.

Another, and a much more invidious way, is Google’s GPL laundering effort, a process whereby Google strips GPL’d products of their headers, and proclaims that by so doing, they have automagically removed all copyrighted information. If I lost you earlier in the last sentence, you’re not alone: I had to rely on this post – from Foss Patients again – to get up to speed.

You can draw a direct line from the read to the current issues faced by Android licensees, for they are not currently under an indemnification coverage by Google for their use of Android-based devices.

Where’s the business sense in ‘doing’ Android?
I am sure that by now, you are asking yourself why are these guys still playing here. I am too.

In the race for the bottom as defined by these OEMs going for the ‘latest and greatest’, they have largely abandoned advancing their respective brands for the few pieces of gold-pressed Latinum they might be able to save by using Android over other operating systems. However, this upfront savings look like they would be eviscerated by the costs of paying for, and complying with, licensing fees required by IP holders for patents used by, and infringed upon by Android via Google.

In a couple of posts last week, Inquiry Analyst Rob Enderle, of The Enderle Group, looks at the business angles that are not so evident in this matter. In the first post, “Microsoft files against Barnes and Noble: The hidden cost of Android”, he tells of the pitfalls OEMs face when they select Android. Particularly telling is this sentence from the summary:

Google has repeatedly avoided the opportunity to invest in and protect Android which largely exists because of the short term gap Microsoft and Nokia/Symbian left in the market and the promise of "free stuff." Rob Enderle

The second article, “Android gets no respect”, reveals why Android may not be the panacea for those OEMs who wanted it to be just that. Money quote:

In short, Google’s model drives low quality and behavior that shifts costs and problems to the OEMs and carriers. Rob Enderle

What is to be learned from those two posts is that OEMS have themselves in a precarious branding and financial position regarding their uses od Android. Moreover, Google is not helping.

It is then no surprise that some OEMs, particularly Motorola, are rumored to be in the market for alternatives.

For those who are keeping score, there are now 37 lawsuits against Android.

Not coincidentally, several states are looking to extract their respective fleshy pounds by bringing antitrust actions against Google.

Folks, this isn’t over.

Stay tuned.