"A Strange Game. The Only Winning Move is Not to Play."

Comments from Redmond may indicate Apple alliance and even Linux patent war.

Somewhere in my family history, there's some straight-up Irish ancestry, so I don't feel too pretentious starting off with a Lá Fhéile Pádraig Shona Duit.

Origins and history play an important role in many cultures, though in melting-pot immigrant cultures like we have here in North America, they tend to get lost in the shuffle. But history is a key aspect in examining many current events, so you can figure out why something is really happening--not just the reason given by corporate reps.

Such deep examination is needed regarding recent comments and articles from members of Microsoft's legal staff.

First, there were the comments made by Brad Smith, Microsoft general counsel, at a March 11 speech to the 2010 Intellectual Property Institute event sponsored by the Washington State Bar Association. In reports coming out of the event, Smith reportedly praised the Apple in the current Apple vs. HTC patent lawsuit, which caused a lot of tech reporters to initially get whiplash when they did the double-take. Microsoft praising Apple? Wasn't that a sign of the Apocalypse?

The initial take from these comments is that Microsoft is positioning itself as a friend of Apple for two distinct reasons: they want to get Bing as the iPhone's default search engine and ultimately they are finding common cause against their mutual foe in Google.

I like this reasoning, because in the short-term, it makes sense. With their development of apps both on the PC and mobile platforms, Google stands the biggest chance to damage Microsoft and Apple's collective business moving forward. This is very true of the mobile platform, where everyone and their brother is scrambling to create the best mobile interface and the optimal device. There are other players, like MeeGo, coming up in this space, but Google has a big head start and a big wallet.

But other analysts see a deeper concern, especially as the pro-Apple hits just keep a'comin' out of Radio Redmond. Yesterday Microsoft's Deputy General Counsel Horacio Gutierrez posted a favorable blog entry about the Apple vs. HTC case, disputing a recent meme in the tech media that believes that this suit will stifle smartphone innovation.

"I don’t agree with the latter viewpoint. There is a long history of IP litigation in the mobile phone market, and innovation has continued apace. As the New York Times noted, 'Nearly every large mobile phone player... has recently been involved in some sort of patent litigation involving mobile technologies.' Whether it is Nokia v. Apple, RIM v. Motorola, or now Apple v. HTC, companies active in the smartphone space are taking steps to protect their inventions."

Again, read a post like that and it's easy to think that Microsoft is still cuddling up to Apple. And that may indeed be so. But Glyn Moody reads something quite different in this statement from Gutierrez. Moody looks at this and thinks that this is a justification of a coming patent war against Linux.

Moody is not someone noted for jumping the shark with his analysis, so when he starts talking about this kind of thing, I, for one, am going to pay attention. Moody sees key statements in Gutierrez' blog as indicators that not only does Microsoft like what it sees with Apple defending its intellectual property, Microsoft also sees itself jumping into the game soon, too.

In such a scenario, Moody argues, Linux would be the ultimate target, though--like Apple's indirect targeting of Google through HTC--Linux would be indirectly attacked.

"Taking legal action against *all* companies producing software stacks for smartphones would allow Microsoft to claim with some semblance of plausibility that it was not specifically targeting Linux this time (unlike its previous sabre-rattling statements about patent infringement that were specifically aimed at Linux). But the net effect would be that Linux would be the chief victim of such an approach..."

Clearly, I think Moody is onto something here, because historically Microsoft has missed the boat on other emergent technologies, and I see little reason to believe they'll willingly miss the boat on mobile tech. And, since their current Windows 7 Phone offering is not getting big penetration, a legal course seems inevitable.

I am wondering how indirect this sort of patent guerrilla warfare will remain. While the big players seem content to fight through proxies in Cold-War fashion for now, how long will it be before a full-scale patent war begins? If players like Google and Intel start seeing too much potential share in the huge mobile market getting fenced off by cross-licensing and proxy suits, they're going to push the button with their own patent portfolios and start global thermolitigious war.

If there's anything positive to come of all of this, it's that any doubts about the perceived value of the smartphone/mobile market should be removed. If the players are willing to risk so much to get ahead in this market, then the potential for profit must surely be great.

Will it be worth it after the dust settles?

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