Microsoft attorney outlines Android patent tactics

It takes flowcharts to keep track of all the mobile patent lawsuits under way.

Apple sued HTC, while Kodak sued Apple, Samsung and Sony. RIM filed suit against Kodak and Motorola. And what are called nonpracticing entities (or patent trolls, if you prefer) such as Intellectual Ventures and NTP have sued pretty much the lot of them.

It can seem - and some have argued - that the patent system itself is broken, forcing companies to spend more time and money on legal battles than research and development.

But that view betrays an ignorance of history, according to Horacio Gutiérrez, the deputy general counsel in charge of Microsoft's intellectual property group.

In an interview with The Chronicle, he said that a flurry of patent disputes has followed any new disruptive technology at least as far back as the telegraph, as companies sort out whose inventions the latest innovations built upon. The smart phone, a veritable Swiss Army knife of digital tools, is no exception.

It's an ugly process, but it's normal and necessary, he said. Without patent protections, companies don't have the incentive to spend years and millions developing new products. And without licensing agreements and the occasional lawsuit, their competitors wouldn't respect the investments and inventions protected by those patents.

Like many companies, Microsoft is playing both defense and offense in today's patent wars. It's being sued by NTP, but it has also demanded that companies using Google's Android mobile operating system pay licensing fees for a number of Microsoft's patents that it claims the free software infringes upon.

In March, it filed suit against Barnes & Noble and its device manufacturers, after the company refused to pay up for its Android-based Nook e-readers. In its legal response, Barnes & Noble said the Redmond, Wash., software giant was pushing for licensing fees that were higher than it charges for its own mobile operating system, and questioned the validity of the patents in question, saying they relate to "arbitrary, outmoded or nonessential design features."

Google has said Microsoft is trying to "extort" profit from companies after failing to gain a substantial share of the smart-phone market itself.

Gutiérrez, who has been outspoken on patent issues in blog posts and press interviews, strongly disagrees. In our interview, he argued that Google is simply "standing on the shoulders" of companies like Microsoft and that licensing agreements are the healthy solution to these patent conflicts.

Q: Microsoft has struck at least 10 licensing deals with companies using Android, including Samsung and HTC, and you've sued Barnes & Noble. Some have called it a campaign against Android, others patent trolling. How would you describe it?

A: Every time there are these technologies that are really disruptive, there are patent cases. People who lived in that particular time would look and say, "What a mess, we certainly must live in the worst time from an (intellectual property) perspective. The system is broken and something has to be done to fix it."

That's the situation we're in right now. If you think of a mobile phone or a tablet computer today, they're not your father's or your grandfather's cell phone.

The devices have evolved and become so much more powerful, because they've added a number of technologies that pre-existed the new devices. In general, they use software to become general-purpose computers.

As we've seen historically, there is a period of unrest and a period of readjustment, until the claims on the ownership of different pieces of technology are well known. There's a period of actually licensing and cross-licensing that makes these issues disappear into the background.

When you buy the device as a consumer, you get it out of the box and enjoy it immediately. What you don't see is an invisible web of licensing and cross-licensing arrangements that actually make it possible.

So licensing is not some nefarious thing that people should be worried about. Licensing is, in fact, the solution to the patent problem that people are reacting so negatively about.