In a decisive twist to the sprawling smartphone wars, it appears the government intends to sue some of the participants over their use of patents. The first targets won't be the companies that initiated the battles, though—companies like Apple, Kodak, and Microsoft that have gone on the offensive. Instead, it looks like Google and possibly Samsung could be the targets of government lawsuits. Staffers at the Federal Trade Commission (FTC) have formally recommended the government bring an antitrust lawsuit against Google, according to sources cited by Bloomberg. Now FTC commissioners will have to decide whether to whether to act on that recommendation. A decision will likely come after the presidential election on November 6.

The problem is Google's use of so-called standards-essential patents. Those are patents it has already disclosed to a standards-setting body as being important to the functioning of some type of technology standard.

If Google ends up being on the business end of a government lawsuit because of smartphone patents, it would be surprising, mainly because Google isn't the company that actually initiated the whole brouhaha. The smartphone patent battles were mainly kicked off by Apple and Microsoft, seeking royalty payments from Android phones, as well as legacy companies that aren't really active in the space, like Kodak.

It's the Android defendants who have tended to hit back with industry-standard patents, as defensive actions in these suits. Samsung did that during its big trial with Apple, but lost. And when Motorola was under patent attack by Microsoft, it used standards-based patents to counterattack; Google decided to keep up that litigation after buying Motorola, and that's apparently what has it in trouble.

The problem with standards-based patents is that companies typically agree to license them on "fair, reasonable, and non-discriminatory terms." The government is apparently concerned that seeking outsized royalty payments in court could violate those agreements.

Judges have shown concern about use of these patents, too. The Motorola counter-attack will be under scrutiny at a special trial in Seattle later this month, where a federal judge will likely set the maximum rates the company can ask for. In Chicago, Judge Richard Posner threw out a patent lawsuit between Apple and Motorola earlier this year, in part because he was unimpressed with Motorola's use of standards-based patents.

Between government investigations and judicial skepticism, it looks like the particular form of patent "ammunition" Android makers are using may end up being severely hampered. The effect could be even more focus on user-interface and feature patents on both sides.

This is actually the second antitrust action against Google in the works from the FTC. Reports emerged last month that four of five commissioners favor taking a separate antitrust action against Google over its search results. Samsung is also under antitrust scrutiny over its use of patents; that investigation is being handled by the Department of Justice, according to the Bloomberg report. Antitrust enforcement is an area where the DOJ and FTC have traditionally split up the work.

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