Followers of the ongoing mobile patent wars have almost certainly heard the name “Florian Mueller”. Mr. Mueller, who describes himself as an “intellectual property activist-turned-analyst” (but is not a lawyer) maintains the popular mobile patent blog FOSS Patents. In the last year FOSS Patents has become possibly the most-visited website covering mobile patents, often providing leading coverage of the Oracle v. Google Android lawsuit, and the many patent tussles between various Android OEMs and Apple and/or Microsoft.
In the fast-paced tech industry the mobile patent wars are often big news, and the combination of high visibility and frequent updating has lead to a great many news stories being sourced directly from Mr. Mueller’s blog. His inside track on German court rulings is surely a boon to reporters, but parroting so many news stories stem from a single source it introduces the possibility of pervasive, systemic bias in news coverage. It turns out that this very issue has been raised about Mr. Mueller’s coverage more than once, as his writing consistently opposes Android's legal interests, sometimes by directly contradicting the observations of independent IP lawyers and legal news sites.
This the second time in six months that Mueller has admitted to taking money from a client he was also providing positive reporting on – in October questions were raised about his impartiality when it was announced that Microsoft was paying him to do a study on FRAND law…the very same topic Mr. Mueller frequently writes about - and nearly always sides with Microsoft on. In fact, an examination of what Microsoft paid him to study reads like a “checklist” for most of Mr. Mueller’s writings about Android OEMs and Microsoft (and/or Apple) over the last six months. Here is the list:
- the injunctive and/or monetary relief requested based on the alleged infringement of FRAND standard patents,
- indications of the demands patent holders made in pre-lawsuit negotiations,
- attempts to leverage such patents in order to receive licenses to unencumbered patents by insisting on a cross-license or by demanding unreasonably high royalty rates for a one-way license,
- the time it takes until patent holders make an offer of FRAND terms when requested,
- court rulings and reasonings (including early-stage decisions, for example, on motions to dismiss), and
- antitrust complaints and investigations triggered by suspicions of FRAND abuse.
To be fair to Mr. Mueller, he has revealed these conflicts of interest himself, and he maintains that they do not impact his opinion or what he writes on his blog. We don't want to impugn his word, so we'll just note that a great many people manage to agree with those who pay their bills, without purposely introducing bias. Thus it’s not Mr. Mueller’s intent that should be questioned, but the results.
Those results speak for themselves; FOSS Patents was one of the main sources last year trumpeting Oracle's ability to win billions of dollars in damages, a claim Groklaw, an independent legal news website, has consistently taken issue with. And when it was shown that those numbers were in fact massively wrong, FOSS Patents neatly pivoted the discussion away from damages to the issue of whether Oracle could get an injunction. As patent after patent was invalidated by the USPTO, Mueller's posts minimized the presumed impact on the case, right up until the patent part of Oracle v. Google was largely surrendered in favor of Oracle's controversial copyright claims.
Note that FOSS Patent's does report bad news for Oracle and Microsoft too, it's just that good news tends to be played up when it benefits Microsoft and Oracle, and it tends to be downplayed when it benefits Google or one of the Android handset manufacturers.
Former trial lawyer Jeff Roberts reached a similar conclusion when it was revealed that Mr. Mueller was being paid by Microsoft in October, writing “The problem lies not with Mueller’s analysis — but with his impartiality. The (Google) engineer is right when he says that Mueller has the knives out for Google. Even a casual reader of the FOSS blog can easily discern that Mueller is quick to amplify any legal setback for Google’s Android or its affiliates.”
Given the evidence it seems clear that however noble Mr. Mueller’s intent, his analyses are often viewed as partisan by independent legal professionals. Whether that partisanship is due to who pays him, or whether his clients decide to hire him because they are already in agreement doesn't really matter in the end. In fact, harping on the intrigue and wringing our hands over Mr. Mueller's intent misses the big picture, which is how this illustrates a larger problem with how the tech media covers patent law in general.
In other words, it is troubling that the number one source behind mobile patent news is getting paid by the very firms his coverage seems slanted towards. But what’s really troubling about the situation is that the media as a whole has let a single source dominate headlines, even when there were competing (and better qualified) sources available. By following the quick and easy path to reporting on a complex subject, reporters set themselves up to be manipulated.
In the final analysis, it’s time for the tech media to step up and pay attention to source bias, and to take steps to broaden the number of sources that are used when reporting on legal disputes. The problem isn't so much with one person's opinion, it's when that opinion is widely (and uncritically) reported as the unvarnished truth.
sources: Groklaw 1,2,3; PaidContent; FOSS Patents 1,2