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Microsoft has responded to Google's promises to play fair with Motorola Mobility's patents, by taking its own 'nice guy' stance, leaving Apple looking like the bully. A day after reports surfaced that Google had promised standards bodies it would adopt 'Frand' (fair reasonable and non-discriminatory) terms for the IPR it will gain with Motorola, the Windows giant made a public vow to negotiate with rivals which use its patents, rather than seeking to block their products.

According to a corporate blog posting, Microsoft will make its standards-essential patents available without requiring companies to cross-license their own non-essential technology. "Patent holders should not seek to block shipments of competing products just because they implement an industry standard - a licence on reasonable terms is always available," wrote Dave Heiner, head of the firm's corporate standards and antitrust groups. This is a change in stance from last June, when Microsoft told the US Federal Trade Commission that a commitment to license patents fairly "should not preclude a patent holder from seeking preliminary injunctive relief or commencing an action in the International Trade Commission just because the patent holder has made a licensing commitment".

The change of official intention will be designed to throw Google in a poor light ahead of its acquisition of Motorola Mobility, which is engaged in a court battle with Microsoft over Android patents - and recently won a key round. Ironically Microsoft is seeking to ban imports of Motorola Android phones should it win its case at the US ITC. However, it argues that the case, like its B&N action, does not involve standards-essential technology. Its policy does not preclude injunctions when the IPR is not fundamental to implementing a standard. Apple has similarly sought to gain a legal advantage by differentiating its cases against Android vendors, which do not rely on essential wireless IPR, from countersuits by Samsung and Motorola, which rest on those vendors' huge stocks of patents used in standards. The European Commission recently initiated a probe into Samsung's licensing practices, it seems partly at Apple's instigation.

In reality, Microsoft has already been chasing royalty revenue rather than lawsuits, although it has gone to court against Motorola and Barnes & Noble. It not only wants the fees, for revenue and to reduce Android's cost advantage for OEMs, but to publicize its stance that Windows Phone is legally protected in a way that the Google OS is not. By contrast, Apple has shown little interest in royalties, and its main aim is to wield its patents in order to stop sales of competitors to the iPhone and iPad.

But Microsoft's main objective in publicly stating its case on patents policy will be to undermine Google, which still needs European Commission approval to acquire Motorola, and also faces a widening range of antitrust probes on both sides of the Atlantic. Apple will have had the same aim in mind, with its demand this week that standard body ETSI should create a clear policy for how standards-essential patents are licensed. Andrew Updegrove, a standards and IPR lawyer with Gesmer Updegrove, told Bloomberg: "You already have Google increasingly under the spotlight. They're living in a tighter and tighter confinement just because their market power is increasing." With their statements, Microsoft and Apple are looking to contrast themselves with their mutual rival and they are "playing to the marketplace and they're playing to the regulators".

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