after Android head-on, you have to wonder how on Earth they’re going to get away with continuing to charge a licensing fee for their software when Android is free? But Microsoft CEO Steve Ballmer sees things a bit differently.

“It’s not like Android’s free,” Ballmer told WSJ in an interview this weekend about Windows Phone 7. “Android has a patent fee,” he said. “You do have to license patents,” he continued.

So Ballmer’s stance is that while Google may not charge a licensing fee for Android, there is a hidden free — one compliments of none other than Microsoft.

Ballmer noted that HTC recently signed an agreement with his company to grant them rights to patents for things they wish to do with Android. A few days ago, Microsoft sued Motorola, clearly attempting to get them to sign a similar deal.

It’s interesting that Microsoft has yet to sue Google for Android, and instead they are focusing on the OEM partners. It’s also interesting that HTC is also making Windows Phone 7 phones right out of the gate, while Motorola has said they won’t be working with Microsoft on phones until next year at the earliest. Instead, they’re focusing on Android. So this lawsuit is purely coincidental, I’m sure.

In other words, this is all political nonsense and a pathetic play by Microsoft.

The software giant hasn’t been successful in mobile phones, so they’re attempting to ride on Google’s coattails with some software patents. Those patents may very well be legit — it’s not exactly clear what they are — but this is a great example of why software patents in general seem to be pretty much a load of crap.

Where has Microsoft been the past couple of years with these suits? I’ll tell you where: waiting to spring this on OEMs when they had their own device out there that they need to gain traction against Android. Microsoft is giving phone makers a choice: pay us to use our software, or pay us to use Google’s software. Or pay your lawyers to fight us in court. (Motorola is apparently choosing the latter — no doubt at Google’s urging.)

When WSJ suggested to Ballmer that the licensing fees aren’t even that big of a financial opportunity for Microsoft, he seemed to get defensive. “It’s one of the opportunities. One,” he said. Okay, then why not just make your software free as well and fight Google on the grounds of better execution, rather than with litigation?

[photo: flickr/aanjhan]

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Authors: MG Siegler

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