Federal antitrust enforcers have been looking into Google this year on two issues: how the company arranges its search results, and its use of standards-based patents as ammunition in the sprawling smartphone wars.
Just two months ago, it looked like there was going to be action before the end of the year on the search fairness issue. Today, the ground has shifted. It looks like the Federal Trade Commission has almost reached a deal with Google over the patent issue, and the FTC may leave action over search results to European regulators, according to a report in Politico.
The big question is whether Google will be able to use such patents to get an injunction that could kick competitors' products off the market. In a case involving Google-owned Motorola, a federal judge has already ruled standards-based patents—which involve a promise to license on a "reasonable" basis—can't be used to win injunctions. Other bodies, including the International Trade Commission, are also considering how to deal with standards-based patents.
In two recent cases, a majority of FTC commissioners found using standards-based patents to ask for injunctions or outsized royalty payments could be considered unfairly anti-competitive.
Google and its handset-maker allies want to use standards-based patents to file patent counter-suits against Microsoft and Apple, which have tended to use non-standards-based patents to go after Android. If judges and government agencies continue to find Google's practice problematic, it could seriously weaken Google's position in patent battles against its competitors.
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