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Microsoft has voiced concern at the settlement reached between the Federal Trade Commission and Google believing the agreements on its search practices and use of its standard essential patents do not go far enough.
Google's reaction to the FTC's 19-month long investigation was unsurprisingly positive:
- "The conclusion is clear: Google's services are good for users and good for competition."
Equally unsurprising was Microsoft's negative reaction, calling the investigation a missed opportunity:
- The FTC's overall resolution of this matter is weak and-frankly-unusual. We are concerned that the FTC may not have obtained adequate relief even on the few subjects that Google has agreed to address.
The investigation had a two-fold remit - it looked at whether Google was manipulating search results to hurt rivals, and also looked at how Google was using its standard essential patents (SEPs). The FTC absolved Google in relation to the first matter, but found it guilty of abusing its SEPs.
While the FTC concluded the search giant was not purposely promoting its own services to the detriment of others in search results, it did force Google to agree to end the practice of "scraping" reviews and other data from rivals' websites for its own products, and to allow advertisers to export data to independently evaluate advertising campaigns.
This all sounds like a positive move from the FTC and Google, but Microsoft's vice president and deputy general counsel, Dave Heiner disagrees. In a blog post entitled "The FTC and Google: A Missed Opportunity" Heiner speaks about data portability and how Google's promise in this matter "falls short of the mark in various ways."
Google previously did not allow advertisers using its Google AdWords platform to easily use data about their own ad campaigns on other platforms, such as Microsoft's Bing. Heiner believes that despite Google's promises to change this practice, it doesn't go far enough.
"Google inexplicably has not promised to allow all advertisers to port their campaign data to other ad platforms-only those with a primary billing address in the United States. But many firms based outside the United States advertise in the United States. What basis is there for excluding them from the protection embodied in Google's commitments?"
Heiner also makes the point that the commitment from Google is not made in the language usually used in antitrust remedies which he implies could allow Google to circumvent the restrictions "by other means."
Microsoft was not the only company complaining about what they see as a let-off for Google. Yelp, which operates a user review sit and had complained about the scraped reviews said:
"The closure of the commission's investigation into search bias by Google without action...represents a missed opportunity to protect innovation in the Internet economy. We look for the regulatory bodies continuing their investigation to have greater success."
Standard Essential Patents
The second strand of the FTC investigation looked at how Google used its SEPs and it found that Google had not lived up to the promises it had made previously. Google, like all other patent holders, are obliged to licence these SEPs to other companies on fair, reasonable and non-discriminatory (FRAND) terms.
The FTC has issued a number of restrictions on Google in an attempt to prevent it from seeking sales bans on products it believes are infringing these SEPs.
According to patent expert Florian Muller, the FTC's approach is that there should be "a window during which the parties can negotiate without the threat of an injunction hanging over the potential licensee, but if the parties can't reach an agreement, they should have a US district court or an arbitration tribunal set the terms for them."
Essentially the FTC is trying to put in place a set of criteria Google has to follow in order to prevent Google seeking an injunction as its first recourse. However Microsoft doesn't believe the criteria are strict enough.
According to Heiner, Google can "continue to threaten that it will sue for an injunction, knowing that many would-be licensees will not be in a position to engage in litigation or arbitration with Google and also meet all of the other procedural requirements set forth in the decree that are imposed on the licensee."
Muller says on his Foss Patents blog that the FTC has done a lot to close loopholes typically used by companies who abuse SEPs, but he remains to be convinced if the right thing has been done:
"While I haven't had enough time yet to think about any loopholes that may still exist, my impression so far is that the FTC has really thought this through and is aware of a number of tactics commonly employed by SEP abusers....but at the strategic level of "doing the right things", I'm unconvinced to say the least and hope that better solutions to the rampant."