Florian Müller, Foss Patents: The go-to man of the smartphone wars

Müller’s willingness to go to German courts has been key to the success of his blog

When Florian Müller appeared on this list seven years ago, most patent attorneys regarded him as an adversary. The computer whizz kid-turned-entrepreneur was a leading force in the fight against software patents, helping activists defeat the EU's plans for a computer-implemented inventions directive. Now he's the leading source of data and analysis on another patent battle: the multi-front global smartphone wars.

When, in 2004, he launched a website called NoSoftwarePatents.com with support from open source businesses 1&1, Red Hat and MySQL AB, it quickly became the primary, although unofficial, source for the media, industry and lobby groups to turn to for the latest gossip about developments on the EU's hottest IP topic. His new role as author of the Foss Patents blog is, in many ways, a natural evolution for Müller: it's all about providing information. This time, however, his most loyal readers are not anti-IP activists but patent owners, attorneys, analysts and journalists who want to read the court documents he unearths, as well as his take on corporate strategies and judges' decisions.

Müller began his blog in April 2010 to document patent issues affecting open-source software. It coincided with an uptick in litigation in the rapidly accelerating smartphone and tablet industries as companies vied for market share: just a month earlier, Apple had sued HTC. In August, Oracle sued Google, and in October, Microsoft sued Motorola and Motorola sued Apple. During this time, Müller was recording and dissecting the US disputes on Foss Patents. In 2011, however, the blog's value soared when the parties opened a new European front to their battles, filing lawsuit after lawsuit in Müller's home country, Germany.

"Following litigation in Germany is a different ballgame than in the US," he told Managing IP. "Over here there's no access to documents and complaints and other pleadings aren't published. Even the final decisions aren't routinely published, or if they are they're in a heavily redacted form and with major delay. The only way to find out about litigation in Germany is to go to the courts for hearings and trials and the judges' pronouncements of decisions."

"Apart from that, most of the people following US litigation can't read German documents anyway. The fact that Germany – especially the courts in Mannheim [three and a half hours by train for Müller] and Munich [40 minutes from Müller's home] – became such an important jurisdiction in these disputes further strengthened the position of my blog, and facilitated my work as a consultant and analyst."

So what conclusions does Müller draw from his immersion in the patent wars? There will be settlements, he tells Managing IP. But while observers will focus on the monetary aspects, the real interest lies in how the parties decide how each of them can use the patented technology in dispute. "People will never find that part out," he says.

The standards-setting organisations that oversee discussions about the patents that should be regarded as essential to a technology must also tighten their rules, says Müller. "The rules they promulgate are relatively vague, as is the meaning of the term FRAND [the Fair, Reasonable and Non-Discriminatory terms on which patent licences for essential technology must be offered]. They will have to be stricter to avoid further problems."

Müller also predicts a rise in the number of lawsuits filed by patent trolls eager to get a slice of the litigation action. "NPEs will come to Europe. There's lots of money flowing into them. Until now they have seen Europe as a secondary consideration but now they will be more interested in getting European patents. If they could get an EU-wide injunction in a German court that would be their dream come true.

Further reading:

It’s the chips not the cards
Comment: Microsoft co-founder is not a troll
The 50 most influential people in IP in 2005

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