Court Documents Show Google Favors Select Android OEMs

| Analysis

Court documents filed in Oracles’ patent infringement suit against Google and its Android operating systems show that Google’s own policy is to allow select Android OEMs have favored access to the smartphone OS. The documents specifically cite Motorola—the same Motorola Google has announced it will purchase—and Verizon, which could well be taken as a conflict of interest by Google’s other OEMs.

The court filing were covered by noted patent watcher Florian Mueller of FOSS Patents, and come from Oracle’s patent infringement case over Java, which Oracle alleges Google used without license in the developer tools distributed with Android. The particular passage noted by Mr. Mueller that he characterized as a “bombshell” revelation is:

Lead device concept: Give early access to the software to partners who build and distribute devices to our specification (ie [sic], Motorola and Verizon). They get a non-contractual time to market advantage and in return they align to our standard.

In the figure below, you can see the passage from Google’s internal presentation on Android highlighted with a red box.

Google Document

Internal Google Presentation on Android from Court Filing
(Click the image to see a larger version)
Source: FOSS Patents

What’s That Mean?

To explain that a bit, this document states that one of Google’s ways to promote Android and maintain control over its “open source” direction will be to provide early access to OEMs who are willing to play ball and design their Android smartphones in a way that matches Google’s own goals of promoting its mobile services, especially search. By doing so, the company hopes that these “lead devices” will help shape expectations and the devices from other OEMs that follow.

This document predates Google’s announced purchase of Motorola Mobility, but the question is this: If Google was going to give early access to Motorola before it owned Motorola, why wouldn’t the company continue to do so once it has purchased the company.

If it did so, that would put those other OEMs, such as HTC, Samsung, LG, and several other global smartphone makers, at a distinct disadvantage, especially if that early access time was extended.

As Mr. Mueller put it, “Can you imagine that a company like Samsung, HTC, LG or Sony could still trust Google in this regard if Google actually competes with them through a subsidiary?”


Of course, the reality is that Google’s best course of action would be to take this path to its ultimate conclusion and become a whole widget ecosystem provider like Apple. Half measures like early access for Motorola or other select OEMs is going to cause problems for those not in the in-crowd, especially if it’s Google’s own hardware arm that is receiving this benefit, while simultaneously not going far enough to provide the best possible device and experience to its users.

Then again, if those OEMs abandon Android (which is admittedly quite unlikely at this point) over concerns stemming from this early access issue, the company may not have a choice but to do it right and use its new hardware company to compete head-to-head with Apple as a whole widget provider.

A Bag of Hurt

Lastly, keep in mind that the backdrop to this particular revelation is that Oracle is suing Google for patent infringement related to Java. FOSS Patents has additional coverage of that aspect of the case in which a Google engineer admits to a “strong indication that it is likely” that he copied Sun’s Java code into Android, which is an entirely different world of hurt for Google’s Android platform.

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I wondered if TMO were going to cover this; it’s been all over the Twitterverse today. In addition, there is the piece from PC World that Google was prepared to split mobile revenue with Sun in its rush to bring Android to market, concerned as it was at the time primarily with Microsoft.

Fascinating reading.


Not sure why that posted twice.

Bosco (Brad Hutchings)

Another way Google shows favor to select OEMs is by essentially leasing them patents to use in counter-litigation against Apple. [RonMacGuy] can tally this as a something I previously predicted in these comments boards.

As for Mueller… Bryan, it’s obviously every Apple fan’s wet dream that Google will be found guilty of buggering sheep without even offering the sheep a towel to chomp down on. Mueller feeds into this, and has become quite a celebrity with his legalistic schtick. He is a false profet and will leave you all very disappointed.

Bryan Chaffin

Brad, your epithet for RonMacGuy is over the line. Edit it, please. [Edit: I took care of it for you.]

As for Mr. Mueller, his assessments have been spot on again and again. Why, he rivals me in the accuracy of his predictions, not that he is in truly in the business of making predictions.

Google stabbing own vendors in the back

It appears the Google is committed to stab its own vendors in the back. This will benefit Microsoft and the development of other proprietary OSes.

Bosco (Brad Hutchings)

Sorry, spell check got me there. Thanks for correcting it. Mueller is feeding you guys a narrative where Google continually steps on its own **** on the way to dominant market share. Mueller also seems to be where Nemo is getting this funny idea that Android is a derivative work of Linux. That’s how I know the guy (Mueller) is a clown.

Bosco (Brad Hutchings)

BTW, Jason Kincaid over at TechCrunch is pointing out that anyone who has been following Google knows that this isn’t news, nor is it damning. Google picks a partner for a flagship phone, gives them early access to future Android, and asks that they stick closer to Google’s plan. G1, original Droid, Nexus One, Nexus S, Nexus Prime… I’ve explained this many times before as Google-style “influence” rather than Apple-style “control”.

It’s just another example of Mueller, formerly a paid Microsoft consultant and fully discredited by the Groklaw crowd during the SCO kerfuffle, sensationalizing and spinning what was long known. He has officially jumped the shark this time, and people who continue to use him as a source will be ridiculed all over the place. Just sayin…


This is going to be a great show to watch. Google and its Twisted Family of Sisters devouring each other with Moto leading wielding a chain saw in hand. Even Apple haters will find all the adverts unappetising. I see a good old slapstick movie in all this. Steve will wear a cape and cary a crocket hammer, Schmidt in tights. Oh, the hilarity!

What is it, about 5% Google tracking tax traffic on mobiles? (5% 3T)

Remember ignore trolls.


As for Mueller? Bryan, it?s obviously every Apple fan?s wet dream that Google will be found guilty of buggering sheep without even offering the sheep a towel to chomp down on. Mueller feeds into this, and has become quite a celebrity with his legalistic schtick. He is a false profet and will leave you all very disappointed.

Sheep buggering aside, at least for the moment, the issue is not the credibility of a single reporting source. If that were all, Google would have little concern about public perception, but that manifestly is not the case. Indeed, Google’s legal team at least are cognisant of the role that public perception may play in court, and have been taking pains to keep it favourable.

While I maintain that my interest in this minimal (perhaps it has evolved to ‘moderate’), I see three intersecting issues.

First, the documents that came out yesterday underscore the fact that Google are not evangelists for an ideology but entrepreneurs, out to make money and protect their profit margins. That should make their investors happy. Sure, they have their own corporate philosophy and culture, but the essential outcome of that philosophy and culture is a profit-making strategy and a healthy bottom line. This is corporate pragmatism, which demonstrates its health when it subordinates zealotry and idealism to competitiveness and staying in the black, without abandoning the company’s core values. Investors and the Street look at this in their projections forward. On this point, there appears to be an emerging consensus that Google was at best sloppy, at worst, may have betrayed its core values of doing no evil, but the mainstream media appear ready to concede that this is for the courts to decide.

Second, is just that, public perception. If there is a public perception of malfeasance, rightly or wrongly, it can affect a company’s performance in the market. If developers and customers begin to smell trouble, meaning that a product’s future is uncertain, and not so much that some violation was perpetrated (if you doubt this, note how hard it has been to get the public concerned about ivory and so-called ‘blood diamonds’ - it takes effort to bring the moral dimension to the consumer table), then they may begin to abandon the product. That will make investors unhappy.

The art is in knowing when that perception is nearing that melting point where your support base will erode. My read is that there is an emerging consensus, rightly or wrongly - doesn’t matter from the foregoing argument - that Google did knowingly commit an infringement; whether the courts hold them accountable or penalise them in some way remains to be seen (this disparity between public perception and legal ruling happens all the time in criminal cases - e.g. OJ) The court of public opinion has the power to ruin. If Google are smart, they will keep their fingers on that pulse, and do what they must to guard against running afoul of it; even if that means peremptorily settling out of court and moving on.

Third is the factor of time. The longer this drama drags on, the greater the risk of support fatigue, where a substantial fraction of a company’s support base will simply conclude that it’s time to bail. That will happen sooner than later if the company’s earnings flatline (specifically for its Android platform), its OEMs continue to be embattled in court, and/or its strategy for profitability is simply unclear (the latter is of greater concern for developers and investors - those who want to earn profits from their partnership). Independent of public or court perceptions of wrong-doing, time may conspire to work against Google, in which case, if they are paying attention, they may move to cut their losses, settle and move on.

It goes without saying that an advantage of settling issues 2 and 3, Google have the advantage of moving on without an admission of guilt of wrong-doing. A silver lining and a return to profitability.

All of these exceed the pronouncements and advocacy of a single or even a few voices for or against. This is a fast-paced business, and performance matters. I, for one, want to see Google succeed in its smartphone business, and have it remain a profitable enterprise. Doing so, however, may require pragmatism and sacrifice.

Now, let the sheep buggering resume.


The first thing I saw was whoever wrote the PowerPoint slide spelled “shepherd” wrong. So much for the vaunted Google recruitment system.


This particular issue has no bearing on Apple vs. Google style being better or worse. Apple doesn’t give preferential access to OEMs because they make the whole widget. Google’s practice is only a problem if some or many OEM’s deem it to be. What they think is the only thing that matters when it comes to making a business decision. Public perception is one part of that. The more important issue for any OEM is the question of fairness when it comes to how preferences are given and how that plays with their bottom line.

Google owning its’ own hardware division is a different matter. That comes with an automatic perception of preference. It wouldn’t take much to give other OEMs heartburn. Google will have to be both careful and transparent.


I have to agree that this is not really news. I’m sure Android adopters want more from Google if they can get it, but unless you’re a Moto or a Verizon, you’re going to have to take what you can get.

But the presentation slide does point out the value in the whole widget approach. “Don’t develop in the open…” says it all. Google didn’t make hardware and didn’t want to invest in hardware so instead of the whole widget, they did their next best thing.

There are risks in their approach however. The risk Apple takes in their whole widget approach is that the offering might not be attractive enough for the market and a competing product can take over. Apple’s mitigation is the same as Google’s, lead the device concept and maintain a pace that keeps you in the lead.

Google’s risk is that by depending on Android adopters to manufacture the hardware and adapt the OS, the adopter might fork the OS for their own use and not avail themselves of Google’s resources. This is unlikely however since Google has better and deeper development resources than the hardware makers.

But then Amazon comes along. Do they make hardware? Well there is the Kindle. Do they make software? Well there’s the Kindle App that runs on lots of stuff and the Kindle itself has to have some kind of OS. So maybe they can pull it off. Android is much closer to a tablet operating system than BSD was to a desktop or table OS so they don’t have nearly as much innovation to do as Apple did when it developed OS X.

Will Amazon defeat Google? Not likely, as long as Google keeps it’s pace of development and continues to help it’s OEMs they will stay relevant, but if Amazon succeeds and makes money from their device, Google will be aiding and abetting a worthy adversary and that’s not a formula for long term growth.


Brad, your epithet for RonMacGuy is over the line. Edit it, please. [Edit: I took care of it for you.]

LOL. Man, I’m sorry I missed it. Bryan, can you email me what Bosco said about me? I am also tracking all of the mean personal insults from Bosco along with his bonehead predictions.

In all seriousness, life is too short to harbor so much anger toward another human being. I have obviously gotten under Bosco’s skin big-time lately, and I will try to back off. Dropping references to his “declining and mostly irrelevant” iPad comment and the iPhone at 10% smartphone market share by the end of 2011 prediction just isn’t as fun as it used to be, knowing how angry he is at me.

What do you say, Bosco? Bury the hatchet? No hard feelings? I’m sorry for being so mean to you. Please stop calling me names!! It hurts my feelings!! E-Hug?

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