Will US Patent Laws Strange Android?

In recent days there the issue of the US patent obtained by Apple relating to the multi-touch functionality has reared it’s head on the Android development lists, and the discussions have left me deeply concerned about whether Android will ever become a serious global player in the mobile OS market.

The discussion started rolling when a patch to add multi-touch functionality on Android was posted on the android-platform mailing list, and ran in parallel another list directly discussing the impact the patent may have, but surprisingly ended up with a post from a Google employee saying that patents should not be discussed on any of the google hosted android lists, and this was further expanded by another Google employee saying that it was “because of legal repercussions”, and “it is simply best not to know about them”.

This to me seems bizarre. Firstly I was always taught that in law ignorance is not a valid defence and you can’t claim immunity from prosecution just because you didn’t know about something. Secondly, and more importantly, in a vast majority of the world software patents are not enforceable. In fact in 2005 an attempt to introduce them in the EU was voted down by 648 votes to 14, that’s right, only 2% of the delegates were in favour of them, so you can bet your money that the Symbian foundation isn’t going to limit functionality in it’s OS just because there is a US patent, and if you expand this to the middle east you then have Samsung, LG, and a host of others for whom software patents are not even a consideration for their non-US ‘phones.

Early this month a US company which is well known for trying to enforce US patents took a shot at Nokia, RIM, and Palm, but all it could do was apply for a block on US imports of those phones, so the rest of the world will still gets these features whatever happens, the only people losing out are consumers in the US.

So now I can see the paths the Android team can follow;

The first leads down a road where it steers clear of any functionality which may be covered by a US patent and heads toward Android being a niche OS which only gains market share in the US.

The second is where discussion of patents is barred and the Open Handset Alliance, Google, et al get sued on a regular basis in the US. This path heads toward Androids resources being wasted on fighting patent laws and the mayhem of lawyers controlling the development of the OS.

The third is where patents are openly discussed and US-only versions of Android are released which have the patented functionality removed, leaving the rest of the world with a competitive mobile OS.

To me the third path looks the way to go, but Google is at the wheel, so as a passenger I’m going to have to see where we end up.