The usual justification put forward by companies enforcing patents against others is that they have to protect their rights as innovators. At a formal level that's true, but often it's really about money and sometimes about weakening competitors. The dispute between geolocation company Skyhook and Google might be a rare exception of patents being asserted in defense of fair and open competition.
Paradoxical as it may seem, this patent assertion against Android -- which could in a worst-case scenario require Google to drop its geolocation/geotagging functionality -- almost comes across as a defense of open source principles. If Google didn't compromise the openness of Android through its trademark license agreement with device makers (more on that later), Skyhook might never have started this infringement action. But since Google tried to preclude Skyhook from some major Android-related opportunities through what Skyhook alleges are unfair, arbitrary and ultimately anticompetitive actions, this conflict ended up in court.
In mid September 2010, Skyhook filed a pair of lawsuits against Google: a patent infringement complaint with the US District Court for the District of Massachusetts (a federal court), and a complaint over trade practices with the Superior Court of Massachusetts.
Patent infringement allegations
On Monday, Skyhook filed its preliminary infringement disclosure in the patent case. That's a document providing the latest detail on the patent infringement allegations that were raised in the original complaint. It comes with claim charts (tables that show the allegedly infringed patent claims on one side and a description of the infringing material on the other).
Skyhook wants an injunction and a damage award related to four patents, all of which relate to the idea of determining a geographic location based on nearby Wi-Fi access points (which are previously identified by having a GPS-equipped car traverse a target area. Those patents are relatively new: the applications were filed in 2004 and 2005. Here's a list of the patents-in-suit:
U.S. Patent No. 7,414,988 on a "server for updating [a] location beacon database"
U.S. Patent No. 7,433,694 on a "location beacon database"
U.S. Patent No. 7,474,897 on "continuous data optimization by filtering and positioning systems"
U.S. Patent No. 7,305,245 on "location-based services that choose location algorithms based on number of detected access points within range of user device"
According to Skyhook's preliminary infringement disclosure, certain claims of each of those patents are infringed by "at least Google Location Services, including, but not limited to, Gears Geolocation API and its implementation in Toolbar, Chrome browser and Mozilla Firefox browser; Client Location Library, and its implementation in Mobile Search with My Location, Google Maps and Google Latitude; and Network Location Provider, and its implementation in the Android Operating System."
Android and the other product and service names hadn't been mentioned in the original complaint. A connection with Android was likely, and now it's certain that this is yet another Android-related lawsuit. But I said before that this one is special because of the fair and open competition context. Skyhook is neither a troll nor a bully. On the contrary, the company wanted to contribute to the Android ecosystem in various ways and apparently started this action to defend itself against alleged bullying by Google.
Skyhook accuses Google of anticompetitive conduct, interference with customer relationships and failure to deliver on its openness promise
The trade-related complaint filed with the state court levels the following accusations against Google:
"intentional interference with contractual relations"
"intentional interference with advantageous business relations"
"violations of Massachusetts law prohibiting unfair and deceptive trade acts"
"practices stemming from Google's anticompetitive conduct and Google's bad faith, knowing and intentional interference with plaintiff Skyhook's contractual and business relations with Motorola, Inc. and other current and potential customers"
Skyhook claims to have "suffered actual damages that exceeds tens of millions of dollars" because Google stopped competing fairly once it "realized its positioning technology was not competitive". Allegedly, "in direct opposition to its public messaging encouraging open innovation, Google wielded its control over the Android operating system, as well as other Google mobile applications such as Google Maps, to force device manufacturers to use its technology rather than that of Skyhook", forcing them to "terminate contractual obligations with Skyhook" or to discourage them from partnering with Skyhook in the first place.
The quality of Skyhook's service depends on a large number of users whose anonymized data are evaluated to update and expand a location "beacon" database. This lost opportunity is another type of damage Skyhook claims to have suffered from Google's behavior.
The complaint highlights what appears to be a major discrepancy between Google's claims that Android is open and its actual practices when its business interests are concerned. One of the document's headlines puts it like this:
"Google publicly represents Android as open source and pro-innovation, then unfairly uses its exclusive oversight of the platform to force OEMs to use Google Location Service"
Skyhook also alleges the following:
"On information and belief, Google has notified OEMs that they will need to use Google Location Service, either as a condition of the Android OS-OEM contract or as a condition of the Google Apps contract between Google and each OEM. Though Google claims the Android OS is open source, by requiring OEMs to use Google Location Service, an application that is inextricably bundled with the OS level framework, Google is effectively creating a closed system with respect to location positioning. Google's manipulation suggests that the true purpose of Android is, or has become, to ensure that 'no industry player can restrict or control the innovations of any other,' unless it is Google."
That last sentence is a "more equal than others" type of allegation. Skyhook really seems to be angry about the fact that it lost some very significant business as a result of Google's conduct. In the complaint, Skyhook talks at length about its efforts to develop a business partnership with Motorola (for nearly four years) and how Motorola viewed Skyhook's location service as an opportunity for differentiating itself from other Android vendors. Skyhook and Motorola entered into a licensing agreement in late 2009. That relationship was then announced on April 27, 2010, but Skyhook says that "shortly thereafter, Andy Rubin (Google's Vice President of Engineering overseeing development of Android) called [the CEO of Motorola] multiple times to impose a 'stop ship' order on Motorola preventing Motorola from shipping Android wireless devices featuring Skyhook's XPS client software."
Google allegedly made various demands that Motorola and Skyhook didn't meet, so Skyhook lost this business opportunity.
Keep in mind Andy Rubin founded the company that started the Android project and was acquired by Google. On Twitter, he has defined open as a set of commands with which one can download and compile the Android source code into an executable. If Skyhook's allegations prove true, it will be remarkable that such an outspoken advocate of openness as Andy Rubin prevented Motorola from exercising one of the fundamental rights concerning open source software: modifying and/or combining it with other software.
The complaint also talks about an unnamed "Company X, a mobile OEM with substantial global market share int he Android market", which "was committed to rolling out its next line of Android phones preloaded with Skyhook's XPS technology." When Motorola learned about that plan, it asked Google for equal treatment, which means that Google exerted similar pressure on that unnamed other company as it previously did on Motorola. Ultimately, Skyhook says, "Company X was forced to drop [Skyhook] XPS and continued the launch of its Android device with Google Location Service. As a result, Skyhook has lost millions in expected royalties under the Company X Contract."
One of the court documents that entered the public record in recent months provides clues that "Company X" might be Samsung.
Google's dilemma with Android: too much openness spurs fragmentation and impedes monetization
A key instrument that Skyhook claims Google used against it is the Android "Compatibility Definition Document" (CDD). You can find a link to its current version in the left column of this web page.
In Google's own words, "[t]he CDD enumerates the software and hardware requirements of a compatible Android device." If OEMs like Motorola want to use the Android trade mark and offer the Google Apps market, they must comply with that document and pass the Compatibility Test Suite (CTS). The idea is that some but not all customization of Android by OEMs is allowed. Theoretically, most of the Android codebase is available on open source terms (except for some closed-source Google-owned components that are very important) and could be modified. But if OEMs exercise their open source rights beyond what's allowed by Google, they aren't allowed to use the all-important Android trademark. From a commercial point of view, that's pretty much a complete show stopper.
The CDD was also mentioned by Oracle in a recent court filing in its case against Google. I reported on it in a previous blog post. Oracle claimed that if the Android codebase as published on the Internet infringes on its Java-related patents, the court should assume (unless Google proves the opposite) that officially licensed Android devices do so. Google denied this and pointed to the open source nature of Android and the possibility of OEMs making modifications. But Oracle stressed that the alleged infringements were found in parts of the Android codebase that OEMs aren't allowed to modify if they want to retain their license to use the Android trademark.
In the opinion of some people, Google's efforts to make OEMs adhere to a common party line don't go far enough. Fragmentation is a major Android worry (the biggest one of all according to ZDNet's open source blog). I've experienced it myself a few times already when I asked friends with Android phones some technical question and they couldn't help me because they used different devices or even the same one (I have a Samsung Galaxy S) but with different operating software versions.
Google argues it needs to ensure compatibility by defining common rules for all Android OEMs. However, Skyhook apparently believes that Google’s control goes beyond simply ensuring compatibility. Skyhook argues it should be allowed to supply its geolocation solution to companies like Motorola and that Google interfered only because it wants to impose its own offering on OEMs.
Android compatibility is determined by criteria that are partly subjective
Skyhook believes that Google doesn't apply consistent standards to what is and what isn't allowed as an enhancement of Android. In its trade-related complaint, Skyhook highlights that "Google's established practice in determining Android compliance consists two steps".
The first one requires an Android-based device "to be run against the Compatibility Test Suite (CTS), a software-based test platform that objective evaluates whether the device and software are compatible with the published Android specifications."
What Skyhook considers unfair is the second step, "a review of the device and software based on" the CDD, which it calls "an amorphous outline of additional, non-standardized requirements". Skyhook says:
"This entirely subjective review, conducted solely by Google employees with ultimate authority to interpret he scope and meaning of the CDD as they see fit, effectively gives Google the ability to arbitrarily deem any software, feature or function 'non-compatible' with the CDD."
Google defends its right to derive commercial value from its trademarks with the usual rhetoric of right holders, including the often-heard accusation that others simply want a "free ride".
Should Skyhook make headway with its lawsuits against Google, or with at least one of the two cases, then it might be able to force Google to open the Android market for alternative geolocation solutions. That's why I said in the beginning that this is a special case in which patents might have the effect of forcing an "open source" vendor to grant open source freedoms to its ecosystem -- which includes the choice of a geolocation solution (be it closed source or open source software). In that event, the end might justify the means.
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