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API Journal: Article

FTC Slaps Google’s Wrist over Patents, Little Else

The deal absolves Google of stacking its search results in favor of its own properties and thereby stifling competition

The Federal Trade Commission said Thursday that it had come to a couple of so-called "landmark agreements" with Google that end the agency's big, almost two-year investigation into the antitrust complaints made against the search giant.

The deal absolves Google of stacking its search results in favor of its own properties and thereby stifling competition, a winning decision for Google that has Microsoft ticked off. Alas, Redmond hoped Google would be embroiled in a major antitrust case.

One of the two consent decrees forbids Google to seek injunctions from the federal courts or the International Trade Commission against "willing licensees" of the standards-essential patents (SEPs) it acquired in its $12.5 billion takeover of Motorola Mobility, patents that are supposed to be available to all takers on fair, reasonable, non-discriminatory (FRAND) terms.

The wording leaves room for Google to argue that the targets of its attempts at sales and import bans are not willing licensees and - although the consent decree ostensibly holds Google to Motorola's FRAND pledges - apparently the only way to resolve such an impasse is for the would-be licensee to take Google to court to have the FRAND terms set, since Google and Motorola have demanded ridiculously high terms at least from competitors like Apple and Microsoft.

FOSS Patents thinks Apple and Microsoft will benefit from the order because the FTC regards them as willing licensees of the patents on FRAND terms but notes that Commissioner J. Thomas Rosch didn't go along with the deal and would have preferred Google be forbidden to seek any injunctions based on SEP patents unless the "licensee refuses to comply with the decision of a federal court or some other neutral arbitrator defining the FRAND terms."

In his dissent Rosch, who is about to depart the FTC, said, "After promising an elephant more than a year ago, the Commission instead has brought forth a couple of mice."

He reckons letting Google off "creates very bad precedent and may lead to the impression that well-heeled firms such as Google will receive special treatment at the Commission." On the other hand, he also thinks that if Google's rival had a beef they should have lodged private antitrust suits.

However, if she had her way Commissioner Maureen Ohlhausen wouldn't have placed any restrictions on Google and its SEP injunctions.

Separately, Google has agreed to remove restrictions on the use of its AdWords online search advertising platform that make it difficult for advertisers to coordinate online advertising campaigns across multiple platforms. And it also pledged to cut down on its use of snippets of content from other web sites such as posting Yelp reviews next to its maps.

FairSearch, whose members include Microsoft, said the FTC's "inaction on the core question of search bias will only embolden Google to act more aggressively to misuse its monopoly power to harm other innovators."

Google chief legal officer David Drummond blogged that "The conclusion is clear: Google's services are good for users and good for competition."

He also said that Google will seek to resolve SEP disputes through a neutral third party before seeking injunctions. "This agreement establishes clear rules of the road for standards-essential patents going forward," he claimed.

The European Commission's probe, started about the same time and touching the same territory, is still on-going.

Google's stock gained slightly on the pretty much expected news.

More Stories By Maureen O'Gara

Maureen O'Gara the most read technology reporter for the past 20 years, is the Cloud Computing and Virtualization News Desk editor of SYS-CON Media. She is the publisher of famous "Billygrams" and the editor-in-chief of "Client/Server News" for more than a decade. One of the most respected technology reporters in the business, Maureen can be reached by email at maureen(at)sys-con.com or paperboy(at)g2news.com, and by phone at 516 759-7025. Twitter: @MaureenOGara

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