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Microsoft sends in the tanks against Motorola, Android

Kicks Android while Oracle holds it down

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Android has a new legal headache - Microsoft is playing hardball and suing Motorola over claimed patent violations in Droid.

Microsoft claims the Droid X and Droid 2, along with other handsets, violate nine of the company's software patents.

The patents cover functions Microsoft claims are "essential to the smart phone user experience" including synchronizing email, calendars and contacts, scheduling meetings and notifying applications of signal strength and battery power.

Microsoft says the patents surfaced during its patent deal announced with HTC in April.

Vice president and deputy general counsel of intellectual property and licensing Horacio Gutierrez said bluntly in a statement: "Motorola needs to stop its infringement of our patented inventions in its Android smart phones."

Motorola promised to "vigorously defend itself."

Microsoft is seeking damages, fees and a ruling from the US court hearing the case stopping the cell-phone maker infringing on the patents in its handsets.

Irony, thy name is Microsoft. Just 24 hours earlier, Microsoft was crowing how it had lined up seven big tech names to stand with it in opposing the i4i case. This claims Microsoft violates the small software company's patents in Office. That's irony one. Irony two? Google, maker of Android, is one of those supporting Microsoft against i4i.

But this is tech and Microsoft, so we don't let things like consistency bother us. In fact, it pays - literally - to be able to talk out of both sides of your mouth at the same time.

Microsoft has perfected the role of playing victim on patents - victim of others' prosecutions and the victim of having its patents violated.

Some of the patents claimed against Motorola smell suspiciously familiar: email and calendar sync are the preserve of Microsoft's ActiveSync technology, something it's making a tidy business out of licensing so that business users on Exchange and Outlook can sync their messages, diaries and contacts between their companies' email servers and their smart phones.

Apple's iPhone was one such phone. Microsoft signed an ActiveSync licensing deal with Apple in 2007 when its CEO was still laughing off Apple's little phone, before he took it seriously as something business people would want. Google licensed ActiveSync in 2009, to give iPhone and Windows Mobile users offline access to their Google calendars and Gmail contacts.

Motorola has been licensing ActiveSync from Microsoft at least since 2004 on other handsets and for earlier versions of Exchange. It's unlikely that an existing license would have covered the new Droid phones.

Typically, in cases like this one, patent actions only go to court after the litigant's come-a-knocking for royalties on patents they say the defendant's used, and the defendant has told the litigant to go swing.

For all the talk of patents coming to light during the HTC case, it's perfectly possible that Microsoft sought to lock Motorola into a licensing deal on something like ActiveSync and lesser system protocols, and was told "no" - or that they couldn't agree terms favorable to Microsoft.

Microsoft's strategy on patents in open source and Linux is to lock off individual companies - should we even bother to mention TomTom and HTC?

Faced by Microsoft's lawyers, HTC in April agreed to pay patent royalties to Microsoft on every single Android-based phone that it ships. HTC also sells phones based on Windows Mobile.

Mobile is a competitive area, though, and Microsoft is looking to do more than just compete on business and technology, it's also trying to nobble the competition.

Microsoft has been trying to scare OEMs away from Android by calling it a violator of patents based on Oracle's prosecution of Google, even before that case has not yet come to court. At the same time, Microsoft has been broadcasting to wobbling phone makers that Windows Phone 7 is clean, saying it will indemnify Windows Phone 7 licensees against patent infringement claims.

For its tough talk about vigorously defending itself, Motorola is likely to settle quietly. TomTom, HTC and Salesforce (which was also prosecuted and whose CEO unloaded on Microsoft) all did. Microsoft's patent police will then decamp to the next handset maker or service provider.

Patent infringement at this level is a fantastic notion. How can all these companies - HTC, TomTom, Salesforce - have been so clueless or so crafty to have been taking Microsoft's technology and hoping to get away with it?

They aren't - probably. Microsoft is claiming ownership of ideas rather than technology under the banner of patents. Using legal brinkmanship, it then hopes to force a licensing deal that means easy money and sets and example to others to fall into line.

You can read Microsoft's filing, with the patents claimed, here (warning: PDF). ®

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