Judge: Targeting Android for destruction is legally okay

“We learned on January 31 that Barnes & Noble had suffered a major setback in a patent-infringement lawsuit filed against the company by Microsoft,” Ed Bott reports for ZDNet. “That day, an administrative law judge (ALJ) at the International Trade Commission (ITC) had tossed out the company’s key defense, that Microsoft was engaging in ‘patent misuse’ as part of a larger scheme to ‘kill Android.’ Today the full opinion has been made public.”

“I found the decision thanks to a story by GeekWire’s Todd Bishop, who noted that Theodore Essex, administrative law judge for the International Trade Commission, had called Microsoft’s negotiating tactics ‘certainly hard bargaining,’ but not illegal,” Bott reports. “This, for me, was the kicker: “Even assuming that these transactions and the related evidence establishes that Microsoft is bent on eliminating Android as a competitor, the mere fact that Microsoft is targeting Android for destruction is insufficient to establish an antitrust violation, let alone patent misuse.'”

Bott reports, “Microsoft isn’t the only mortal enemy Google and its Android hardware partners face. Before he died, Steve Jobs said ‘I’m going to destroy Android, because it’s a stolen product.’ And he promised he would ‘spend every penny of Apple’s $40 billion in the bank, to right this wrong.’ Apple shows no signs of backing down in its Android-related lawsuits.”

Read more in the full article here.

MacDailyNews Take: The screw tightening continues unabated.

[Thanks to MacDailyNews Reader “Spark” for the heads up.]

Related articles:
Apple goes thermonuclear on Google and Motorola over Android 4.0 – February 12, 2012
Apple requests U.S. preliminary injunction against Android flagship device Samsung Galaxy Nexus based on four high-power patents – February 11, 2012
Steve Jobs: ‘I’m going to destroy Android, because it’s a stolen product; I’m willing to go thermonuclear war on this’ – October 20, 2011

34 Comments

  1. > And he promised he would ‘spend every penny of Apple’s $40 billion in the bank, to right this wrong.’ Apple shows no signs of backing down in its Android-related lawsuits.

    The ongoing fight does not seem to be hurting Apple’s “bank account” balance. 🙂

    1. I think it will be Oracle, and not Apple or Microsoft, that does the most damage to Android.

      Also, Oracle is like Apple – they are not suing for money, but to get Android to stop using stolen Oracle IP. IP which is essential for Oracle to exist.

    2. “Everyone” in the Bay area know that you * NEVER * mess with Larry Ellison. If you think the late Steve Jobs’s “thermonuclear” statement is tough, we can all sit back and enjoy the show on what and how Oracle’s Larry Ellison is going to handle Google.

  2. Ah, the post skewing begins. Steve never “promised” to spend the 40B going after Android. He simply said *if* it were his call he’s go that far to nail them. That’s a big *if*. He had stated previously the cash is for hard times, to give themselves options should they be falling from the lead. With their hoard they could fund a lot of R&D (unlikely), buy technologies to diversify, or use it to flood the market with Apple products at profit margins far lower price than competitors could withstand.

    I am deadly curious. Tim Cook has been making statements of “Jaw-dropping opportunities” for Apple, everyone knows they will make a stab at TV distribution in some way soon, and all that cash has a purpose.

      1. I’d love to send you a link but I don’t have one. I heard him say it in an interview in response to the recent economic slowdown. That said, you’ll have no luck finding an article where Steve said “I promise to use all Apple’s 40B going after Android”. He simply has never said that.

        In the end, the answers to the Billion Dollar Question have all been vague, no matter who at Apple responds. I could be wrong, but I don’t think anyone at Apple truly knows what they’re going to do with the money yet. Wasting it on directionless R&D would be an IBM-like mistake, buying other companies for no reason would simply make Apple a messy conglomerate, and simply divvying up to investors would be a seen as a creative weakness while reducing their ability to compete fiscally.

        On spending 40B to sue Apple – Steve was clearly being overly dramatic to showcase his loathing of Schmidt & Android, but his words cannot be taken literally for many reasons:
        a. Apple’s board, not Steve Jobs, is in sole control of where they spend their cash.
        b. If we start taking his wild statements literally (I’m willing to go thermonuclear) then we better look closely at the new mothership plans for a sub-terranean silo labelled the “SchmidtHouse” containing an atomic weapon with the words “Google This!!” scrawled in Steve’s handwriting on the side. BwwwaaaaHaaa!
        c. Steve has historically been ethically opposed to big lawsuits. His first acts coming back to Apple was to end the lawsuits and close the Apple Products Museum. He said both activities are an act of looking backward instead of looking forward to the next great thing, a waste of R&D cash, and lawsuits never create anything.
        d. Today, Android is Apple’s only true competitor in a field everybody knows will own the future. There’s a lot at stake and small mistakes can be huge down the road. A savvy businessman, it’s not unlike Steve to poke Google with public threats, spurning them to spend billions reactively under threat of being sued out of business by Apple. (Result: Apple launches a few small suits and saves their hoard … while Google buys up companies for patents, becomes more MicroSoftian, and blows their stash on protectionisms rather than invention.)

  3. It actually makes no sense to believe that intent to quash the competition using “illegal” means is ok.

    Why isn’t dumping ok? I mean why is patent misuse any different than pricing “misuse” to get an advantage over a competitor.

    1. I don’t get what point you are trying to make. Did you misunderstand the judge’s comment? He said that targeting a competitor for destruction is NOT patent misuse, nor is it illegal.

    2. If you read the article you’d know the answer, plus as a bonus you’d know using patents to crush a competitors product and in this case destroy Android is perfectly within the law.

      In fact it’s the whole purpose of Patents to protect innovators from imitators.

  4. Microsoft does not wish to kill Fandroid as they make quite a nice profit on every Fandroid made by HTC and others over Microsoft Patent settlements. The number I have heard is $5 unit for the ‘Free” OS just for MS infringements.

    1. While MS does make money off of Android, if Android were to disappear, MS could sell more WinPhones into the new void in the market. Selling all of your product is more profitable than getting a piece of someone else’s.

      1. Ironically, Microsoft’s license fee for their own product isn’t all that much greater than the patent fee they get for Android. And with their own product, they must provide support, updates, fixes, patches, the works; with Android, they collect the money and twiddle their thumbs.

        1. Exactly,
          100,000,000 Fandroids @ $5 = A half billion $ with no ongoing costs or liability.

          Given the share size of the Windows Mobile OS vs Fandroid, I posit MS makes more from Fandroid than they do from Windows Mobile.

    2. It doesn’t matter how much they’re making from Android. Microsoft can’t tolerate competition. It’s marked for death simply because their brandname isn’t on it, and patents are just a means to kill it.

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