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Originally published August 27, 2012 at 9:14 PM | Page modified August 28, 2012 at 6:48 AM

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Windows Phone, Nokia may make gains from Samsung's pain

Some manufacturers building on Android may turn to Microsoft's Windows Phone platform to avoid a similar legal battle with Apple.

Seattle Times technology reporter

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Sure, Apple won big Friday when a federal-district court jury decided Samsung had infringed on some of Apple's patents.

But two other potential winners weren't even parties in the lawsuit: Microsoft and Nokia.

The thinking goes like this: Though Apple's beef was with Samsung, many see the case as a proxy war between Apple and Android, the operating system for smartphones and tablets that Google created and gives away free.

Apple — as has Microsoft — contends Android violates some of its patents. Now that a federal jury in San Jose, Calif., has said as much — though how much is in dispute — some manufacturers building on Android may turn to Microsoft's Windows Phone platform to avoid a similar legal battle with Apple.

Nokia, which has turned to Windows Phone as its primary smartphone operating system, may benefit if Apple wins an injunction preventing some of Samsung's devices from reaching store shelves. That gives Nokia a window of opportunity as it prepares to launch its new Windows Phone 8 devices, presumably this fall.

That said, there's a big caveat: It's still unclear how all this will play out.

Samsung, which must pay $1.05 billion to Apple under the verdict, has said it would seek to overturn or appeal the decision. Google, in a statement, said the verdict reached Friday involved patent claims that "don't relate to the core Android operating system, and several are being re-examined by the U.S. Patent Office."

And it's unknown whether the court will grant Apple's request, filed Monday, for a preliminary injunction against the sales of eight Samsung smartphones.

Still, the unknowns did not prevent some Microsofties from cheering the news, either jubilantly or subtly.

"Windows Phone is looking gooooood right now," Bill Cox, senior director of marketing communications for Windows Phone, tweeted Friday.

Horacio Gutierrez, Microsoft's deputy counsel of intellectual property and licensing, has been tweeting links to articles about the verdict being "a shot across the bow of all Android device manufacturers" and about how Windows Phones have different looks and features than the iPhone and iPad.

An Apple lawyer had, during the course of the trial, pointed to Nokia's Lumia Windows Phone devices as smartphones that look different from the iPhone.

Jorge Contreras, associate professor at American University's Washington College of Law, said nearly half of the patent claims that went before the jury had to do with features related to Android software, including tap-to-zoom gestures and a "rubber band" snapback feature.

"My overall assessment of the case is that a workaround is not that difficult, now that we know what's infringing," he said.

Still, such workarounds for software, and changes — if needed — to the design of smartphones, could cost Samsung time — something that Microsoft and Nokia, which have struggled to gain more than a minuscule market share for Windows Phone, could use to their advantage.

"There would be a gap," Contreras said. "It would give Microsoft a very good opportunity if it could present lower-priced tablets and smartphones. ... Unfortunately, I don't know if they're geared up, production-wise, to fill that gap. And it's a pretty small window. It won't take long for Samsung to jump in with a design that's a little bit different."

Chetan Sharma, mobile strategist and co-founder of Issaquah-based Chetan Sharma Consulting, agreed that the verdict may push Samsung and other hardware manufacturers toward Microsoft.

Samsung, "being the most agile and biggest OEM [original equipment manufacturer] in the market, it's great news for Microsoft that their ecosystem could become bigger because right now, it's primarily Nokia, with some tepid support from HTC and Samsung."

Manufacturers might also be weighing the cost-benefit of continuing to go with Android, even if Apple turns to licensing its patents, which it generally does not do.

"If [manufacturers] feel that Apple might come after them with a lawsuit or they might try to extract more royalties out of them, the margins will pretty well disappear," Sharma said. "And they're already razor thin."

Though that might mean more competition for Nokia, the Finnish phone-maker could benefit in another big way from the Apple v. Samsung verdict.

"For Nokia, it's great news in terms of uncertainty in the market," Sharma said. "Carriers don't know if there will be certain Samsung devices on the shelves for the holidays. They don't want to be left with a set of devices that can't be sold in the U.S. So they will probably revisit their decision on the volume of Nokia devices they're planning to sell."

With Nokia and Microsoft expected to announce new Windows Phone 8 devices Sept. 5, "the timing couldn't be better," Sharma said.

Still, not everyone agrees the verdict will turn into a win for Microsoft and Nokia.

Edward Snyder, an analyst with San Francisco-based Charter Equity Research, said in a Bloomberg News report that the judge ruled the infringements had more to do with imitating the iPhone's design — a Samsung hardware issue — rather than Android software.

"We're unlikely to see a big push to Windows because of this," he told Bloomberg News.

And observers disagree on whether the jury verdict will be overturned.

Florian Mueller, an intellectual-property consultant who writes the FOSS Patents blog (and who does consulting work for Microsoft and other tech companies), characterized the verdict as concluding "Samsung is a reckless copycat" and that an appeals court would likely treat the verdict "with significant deference."

But Pamela Jones, a trained paralegal who founded the Groklaw website, which is coedited by a lawyer, said: "I don't think the verdict will stand unchanged."

"The purpose of all this is to make Android undesirable to customers and OEMs, I have come to believe," Jones said.

"I don't agree that in the end there will be cross-licensing, just like in prior patent battles. This is about destroying Android, not making money from it, as best I can tell. So it's bad for all the people who really love Android and want to have it."

Janet I. Tu: 206-464-2272 or jtu@seattletimes.com. On Twitter @janettu.

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