FOSS in Intelligent Mobile

(IPRinfo 2/2012)

Once upon a time, not that long ago, Free and Open Source Software (FOSS) was the apple of eye for many companies. However, the general approach may be shifting again towards more closed models.

If we take a look at the telecom side, many crucial business decisions have recently been made in terms of (discontinuing) development of FOSS based mobile operating systems (OS).

While Android OS, the FOSS project maintained by Google, is going strong, development of some other FOSS based operating systems have been recently set aside. Namely, roughly a year ago, Nokia announced that it would end development of its Linux based MeeGo OS, just before informing of its new cooperation with the proprietary giant Microsoft. Nokia also decided to leave further development of the open Symbian OS, which now is maintained by Accenture.

Also Intel, which earlier had merged its development efforts in open Moblin OS with Nokia’s Maemo OS, decided to shift its focus from MeeGo to another platform. However, instead of choosing a proprietary OS, Intel decided to explore the open Tizen OS.

Tizen is also Linux based OS, hosted by Linux Foundation and LiMo Foundation and supports multiple device categories, such as smart phones, tablets and automotive. According to Tizen Association, which was formed to drive industry presence of the platform, first Tizen based devices may be released on the markets already in mid-2012.

Intel, which according to its own words ”believes in provision of choices when it comes to operating systems”, also works closely with Google on Android and with Microsoft on Windows. Finally, HP has decided to contribute WebOS to open source community.

Openness secures success
Many contributors of MeeGo OS expressed their frustration over FOSS development model after MeeGo project was discontinued. According to some contributors, the problem in FOSS development model is that things rarely get finished before the projects already are abandoned – what a waste of time, energy and efforts.

However, despite the challenges of FOSS development model, Android OS has gained the widest market share in smart phones in US. So far, Android platform is still open source and available for free under Apache 2.0 license for OEMs like Samsung and HTC.

Further, no patent protection has been sought for the platform itself. Openness of the platform has secured its tremendous success, and its market share is around 50 percent in smart phones in US. By way of example, Apple and RIM, which sell devices running on their own proprietary OS, and Microsoft, which licenses its platform to other device manufacturers, come way behind.

The diversity of mobile seems hard to capture, but based on the above, when it comes to intelligent mobile (smart phone, tablet, etc.), it seems – from both commercial and licensing (FOSS vs. proprietary) perspective – that currently there’s Android, and then there’s everything else. Still, there exists fierce competition between Android and the other platforms.

Google: Protecting Android against competitors
The recent patent acquisitions tell that Google clearly aims at strengthening the Android platform and protecting it against competitors’ attacks. One of the biggest IP deals during the last 12 months was Google’s acquisition of Motorola Mobility, including its more than 24 000 patents and patent applications for the deal value of over 12 billion dollars. In addition to Motorola patents, Google also acquired around 2 000 patents from IBM last summer.

The Rockstar group, consisting of Apple, Microsoft, RIM and some other players, was in turn formed to acquire 6 000 patents and patent applications, including many standard essential patents relevant to wireless devices, from Nortel. Interestingly, the patents were sold in connection with auction, and also Google bid for the same portfolio. However, Google lost for the Rockstars, as they offered five times more and paid finally 4.5 billion dollars for the patents.

Also another technology consortium, CPTN consisting of, among others, Apple, Oracle and Microsoft, acquired 900 patents from Novell for 450 million dollars.

Specific to this deal is that some of the patents are actually relevant for the Linux OS and subject to open source license commitments, because Novell was member of Open Invention Network, (OIN). On the other hand, Nokia and Microsoft transferred some 2000 patents to Mosaid last year. Mosaid obviously did not pay anything for the patents, but will manage (read: enforce) the patents for Nokia and Microsoft.

Litigation for commercial ends
Despite the recent acquisition of Motorola Mobility, Google will not restrict use of Android to Motorola. According to Google, openness of the platform will secure widest user base. However, the IP acquisitions imply that because of the fierce competition between the platforms, Google is protecting Android against the constant threat that it is facing from Oracle, Apple and Microsoft.

By way of example, numerous patent infringement actions have been brought against Android. Oracle has sued Google for infringing its copyrights and patents in Java platform acquired by Oracle from Sun. Interestingly, also Java platform is FOSS and available under GPLv2. However, related copyright (and implied patent?) licenses concern only code used under and in compliance with GPLv2.

This brings FOSS litigations from the context of ”litigation for compliance” to ”litigation for commercial ends”. Further, Microsoft has sued Android device manufacturers for IP infringements based on handsets running Android with the aim of enforcing industry-wide patent licensing program. High royalties may drive some device manufacturers to consider alternative platforms.

From disputes to cross-licensing?
Consequently, IP acquisitions are especially important for companies seeking to secure their position on the markets. In order to mitigate risks based on third party patents, reality check of industry behavior may require building up own patent portfolios, and obtaining licenses for necessary third party patents.

However, from economic perspective, obtaining licenses for any and all third party rights may of course be practically impossible because of the high transaction costs. Because of that, developing complex technology may inevitably infringe some third party rights, which means that sooner or later patent infringement claims may drop into mail box instead of Season’s greetings.

Considering the potentially rapid enforcement of IPRs, disputes are often settled quickly and what may result in eventually is a cross-license between the parties to the dispute. However, also injunctions are possible, and a real threat, especially if the patent holder wishes to exclude others from markets and is less dependent on potential cross license. While products come and go, IP and IP intensive acquisitions will stay. FOSS is no longer independent from that business scene.