The mobile phone wars got a more interesting late on Tuesday as Microsoft publicly asserted for the first time that Google's Android operating system infringes on its intellectual property.
Microsoft has taken the position, according to those close to the company, that Android infringes on the company's patented technology and that the infringement applies broadly in areas ranging from the user interface to the underlying operating system.
In a statement to CNET, Microsoft deputy general counsel Horacio Gutierrez said that, although Microsoft prefers to resolve intellectual property licensing issues without resorting to lawsuits, it has a responsibility to make sure that "competitors do not free ride on our innovations."
His comments came as Microsoft and HTC announced they have inked a new patent deal that specifically provides the Taiwanese cell phone maker with the right to use Microsoft's patented technologies in phones running Google's Android operating system. Microsoft said it has been in talks with other phone makers.
"We have also consistently taken a proactive approach to licensing to resolve IP infringement by other companies and have been talking with several device manufacturers to address our concerns relative to the Android mobile platform," Gutierrez said.
Although Microsoft and HTC did not disclose details of the financial terms of their agreement, they did note that "Microsoft will receive royalties from HTC." The deal covers all Android-based phones made by HTC, including the Nexus One, which Google sells directly.
"HTC and Microsoft have a long history of technical and commercial collaboration, and today's agreement is an example of how industry leaders can reach commercial arrangements that address intellectual property," Gutierrez said in a press release announcing the deal. "We are pleased to continue our collaboration with HTC."
For the past several years, Microsoft has claimed that Linux-based products infringe on its patents and sought out licensing deals with those making devices based on the open-source operating system. The company has signed scores of such deals, however, this is the first one covering Android.
Android is based on Linux but also includes other mobile-specific interfaces and programs that could be among the areas in which Microsoft sees infringement. Microsoft declined to comment on the specific areas where it sees infringement by Android.
The pact comes as the patent battle in the cell phone space has grown more intense. Apple announced last month it was suing HTC for patent infringement. HTC is in an interesting position, being a leading maker of both Windows Mobile and Android-based devices.
Apple's suit mentions HTC's Android and Windows Mobile phones, although some observers have said that Android appears to be the focus of the suit.
"Google is really unable to protect HTC because they don't have any portfolio of patents in this area," Dulaney said. Microsoft, by contrast, has a broad portfolio and a patent cross-licensing deal with Apple that probably covers HTC's use of Windows Mobile, though perhaps not other things that HTC has done on its Windows Mobile-based phones.
Apple may have picked HTC, Dulaney said, because it also doesn't have much in the way of patents used to counter Apple's claims.
"Motorola could probably be a different story because they have more patents that they can bring to the table," Dulaney said.
It's not clear to what degree, if any, the Microsoft agreement will help HTC in its battle against Apple. However, Dulaney said that is the key battle for HTC.
"If this doesn't in some way help HTC against Apple, frankly, I don't think they gain much," Dulaney said.
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