The Nature of Google's Action

Google has filed an action for a declaratory judgment of non-infringement. Google requests this relief because Defendants Rockstar Consortium US LP and MobileStar Technologies LLC (collectively, "Rockstar") have filed seven lawsuits claiming that Google's customers infringe a series of their patents.

Rockstar accuses Android features including "Mobile Hotspot functionality" which is "designed to route data packets between wireless devices tethered to the Mobile Hotspot to nodes on a public network such as the Internet," of infringing patent 6,128,298; "VPN management functionality," allegedly infringes patent 6,765,591; 'Messaging and Notification functionality," allegedly infringes patent 6,463,131; a "navigable graphical user interface that permits a user to manipulate and control the contents of the display to maximize the use of display real estate," allegedly infringes patent 6,037,937; "integrated notification message center," allegedly infringes patent 6,333,973; "Location Services functionality," allegedly infringes patent 6,937,572; and lastly, Rockstar accuses Android of infringing patent 5,838,551 titled "Electronic package carrying an electronic component and assembly of mother board and electronic package."

Google claims in their filing that Rockstar's litigation campaign has placed a cloud on Google's Android platform; threatened Google's business and relationships with its customers and partners, as well as its sales of Nexus-branded Android devices; and created a justiciable controversy between Google and Rockstar.

Google's complaint further states that "on information and belief, Rockstar's shareholders direct and participate in Rockstar's licensing and enforcement efforts against companies in California. For example, Apple Inc. ("Apple") is a large shareholder in closely-held Rockstar, and maintains a seat on Rockstar's board of directors. Rockstar's CEO has publicly stated that Rockstar maintains regular contact with its shareholders. Apple's headquarters are in Cupertino, California.

In addition, this Court has personal jurisdiction over Rockstar for another reason: Rockstar has purposefully directed into California its enforcement activities regarding the patents in suit. As part of this enforcement campaign, Rockstar contacted and met with a series of California-based companies, accusing their devices that use Google's Android platform.

On information and belief, Rockstar contacted and met with these California-based companies in order to discourage them from continuing to use Google's Android platform in their devices, and to interfere with Google's business relationships."

Rockstar's Campaign against Android

Google states that among the myriad companies ensnared in Rockstar's patent dragnet are customers and partners of Google who use the Android platform in their devices, including ASUS, HTC, Huawei, LG, Pantech, Samsung, and ZTE.

In the Android OEM Actions, Rockstar alleges that each Android OEM Defendant infringes some or all of the "patents in suit" by making, using, selling, offering for sale, importing, exporting, supplying, or distributing "certain mobile communication devices having a version (or an adaption thereof) of the Android operating system" developed by Google.

Further into the complaint Google states that "On information and belief, Rockstar intends the Android OEM Actions to harm Google's Android platform and disrupt Google's relationships with the Android OEM Defendants." The court document included a link to an Ars Technica report titled "Patent war goes nuclear: Microsoft, Apple-owned "Rockstar" sues Google."

Google concludes that "For all these reasons, an actual controversy exists between Google and Rockstar regarding the alleged infringement of any claim of the '551, '937, '298, '973, '131, '591, and '572 patents." Google's action refutes that they infringe on Rockstar's patent in suit and want the court to rule that "Google's Android platform and the Nexus 5, Nexus 7, and Nexus 10 do not infringe any of the '551, '937, '298, '973, '131, '591, or '572 patents.

Google's Hypocrisy

While Google is complaining about Rockstar's patent strategy, Florian Mueller (an intellectual property blogger and consultant on wireless devices with clients including Microsoft, Oracle, financial services companies, and law firms) rightly pointed out Google's hypocrisy in an article published in late November.

Mueller stated in his report that "Google paid $12.5 billion for Motorola Mobility, hoping to gain leverage from its patent trove. It won hardly anything in court, and currently has zero enforceable injunctions in place against Apple and Microsoft. Motorola's overly aggressive use of patents on industry standards, which are subject to licensing commitments, drew antitrust scrutiny in the U.S. and in Europe.

This behavior may explain why six major industry players, including one Google hardware partner, formed the Rockstar Consortium to clear the market of the Nortel patents. Google's original plan was to do with the far more powerful Nortel portfolio what it then did with Motorola's weak tea. A whole industry could have been held hostage to Google's Android patent infringement strategy.

In the end, does such hypocrisy from Google really surprise anyone?