On Google's alleged abuse of "standard essential patents," Microsoft's Heiner wrote that the FTC's consent decree "accepted less relief from Google" than the Department of Justice obtained from Microsoft, Apple and other companies in similar cases.
"During patent licensing negotiations, 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," the Microsoft executive wrote.
"Google can even continue to use its standard essential patents to fend off patent infringement actions against it: the proposed decree gives Google leeway to sue for an injunction on its standard essential patents if it takes the position that injunctive relief sought against it is based on a patent that is standard essential."
Heiner said the portion of the settlement related to data portability "falls short of the mark" in several ways, such as not explicitly requiring that Google allow advertisers to port ad campaign data to other ad platforms, only those with a primary billing address in the U.S.
"We are puzzled and concerned that the FTC did not follow its standard practice in exercising due diligence by obtaining feedback from the industry on the specific terms of Google’s promise before accepting it as a suitable resolution of this matter," Heiner wrote.
The Microsoft counsel also expressed disappointment that the FTC ruling did not cover other issues, including alleged search bias issues and what it said is Google's refusal to allow Microsoft to offer "a high-quality YouTube app for the Windows Phone."
Heiner pointed to Google's upbeat public statements following the FTC announcement as evidence that "Google will be emboldened" by the decision, saying "Google seems to be walking with a new spring in its step today.
"There appears to be no reason, despite the FTC's optimistic statements this morning, to believe that Google recognizes its responsibilities as an industry leader. That is certainly consistent with the lack of change we continue to witness as we and so many others experience ongoing harm to competition in the marketplace," Heiner said.
The Microsoft counsel noted that other antitrust agencies in the U.S. and in Europe "are still examining Google's conduct."
PUBLISHED JAN. 4, 2013