Android has half of U.S. market, but for how long?

(MoneyWatch) COMMENTARY Android has had a remarkable run. Coming to market after Apple (AAPL) got a big head start with the iPhone, the mobile operating system from Google (GOOG) has become the leading choice on consumer devices. In the U.S., Android was on half of all smartphones from March through May 2012, according to comScore. Apple's iOS operating system, which runs the iPhone, had 31.9 percent market share.

But that's today. What will happen tomorrow? Apple continues the legal patent advance against Android with a pair of court victories. And its main target is Samsung, which just happens to be the current foundation for Android's smashing success. Even though it prevailed against Oracle, Google is hardly out of the woods yet, and that could open a door for Microsoft's (MSFT) Windows Phone.

The top smartphone platforms graph from comScore sets up half the current state of U.S. smartphone sales:

RIM (RIMM) is weak and falling. The company's current strategic and operational mess is unlikely to improve, and market share will probably keep falling. Microsoft has a tiny portion of the market. Symbian is on the way out.

The other half of the state of U.S. smartphone sales comes from the data on the market share of handset vendors (OEMs, or original equipment manufacturers):

Between Apple and the number one spot are two vendors, Samsung and LG, which have done well with Android. And that's how we end up in court, as Apple and others have attacked Google indirectly through patent infringement lawsuits targeting its hardware partners. Last week, a judge granted a preliminary injunction against Samsung's Galaxy Nexus phone, a big seller, after also granting a preliminary injunction against the Samsung Galaxy Tab 10.1 tablet.

Preliminary injunctions granted before a trial starts are unusual, so getting two of them is significant. Keeping these products out of the U.S. market could be enough to knock Samsung out of the top spot and give Apple a chance to pick up additional customers.

Things will get worse

And the contention will be ongoing. As patent blogger Florian Mueller points out on his Foss Patents blog, most of the patent action is still outstanding, with new patents (and the possibilities of additional suits) continuing to come into being. Courts in different parts of the world have collectively found that Android has already infringed 11 different patents.

The Android fans/Apple haters I've read dismiss the chance that Google's operating system could be pushed out of the market. But that's already happening in a practical sense, if the biggest Android-based mobile hardware vendor, Samsung, faces its top products being excluded from U.S. store shelves.

Now for the more speculative part: Should Apple, Microsoft, and the like continue their success in tripping those who use Android, what choice will hardware vendors have? Eventually, they have to manage the risk of designing and making products that will be excluded from the market.

What are their choices? Symbian is long past its sell date. Buy RIM? Perhaps. But more likely they'd look at using Microsoft Windows Phone as an available alternative that stands at least some chance in the market. And that's probably what Microsoft has been angling for all along.

Image: Google, editing by Erik Sherman

[hypnotoad72]

Well, with Apple (and others) vying for lobbying perks from the government, we can already rule out "let the free market decide". We all know the 'free market' is an unsubstantiated myth.

All Apple has left is patents.

Now wonder why nobody wants to create anything. I might have a great idea and start programming it. If any company owns the patent that they can convince some judge that my version somehow impinges their idea, I lose everything. It doesn't matter if I'm ignorant of all 8,000,000,000,000 parents out there, or if my device is shaped like a rectangle. If their lawyers can spin it, the worker is toast.

[eriksherman]

It's a huge problem. You pretty much have to rely on someone else's framework if there is licensing that provides indemnification.

[kevgr5]

has anyone ever heard of workarounds , by the time these devices get band they are a year old ! Google will continue to refine the os until all patents have been bypassed

[micheassf]

The patent Armageddon was declared by Jobs it is clear that Google has the legal muscle to push back in these matters.

Florian claimed that Google would pay Billions in damages in Oracle v Google and it turned out that Google put out the effort to get all of Oracles patents (which are generally considered to be of higher quality than Nokia, Apple, and Microsoft patents) invalidated.

The injunction by a not particularly notable judge that does not have a long history of writing decisions that other judges will follow is at odds with the two most influential judges that have been involved in the cell phone patent litigation have issued ruling that the damages claims are mostly fictitious.

Florian is paid to make the claims sound reasonable, but the lack of success in the legal arena is causing widespread hand wringing in the legal community as the tech companies seem to be wising up and plan to spend a few hundred million dollars less next year than this year on legal fees.

Androids problem is that Google didn't learn from the Unix wars where the BSD style license allowed everyone to make incompatible versions that didn't grow the eco system and allowed a third party to dominate.

Apple is the company that is poised to take advantage of this misstep not Microsoft.

[eriksherman]

Florian reported how much Oracle was seeking, which is different from claiming the amount. And where do you get that he's "paid to make the claims sound reasonable"? That's a pretty serious accusation. Do you have any evidence to back up that claim?

The Oracle patents were not invalidated; the jury said that Google didn't infringe, which is different. Also, the issue was complex, with Sun's previous treatment of others using Java.

If Android ultimately has a problem with patents, and it still may, then, yes, Apple might gain some. But so could Microsoft, unless someone came up with some other platform the vendors could and would use.

[Christy007]

What? People are still quoting that hack Florian Mueller? Things are always just about to disintegrate for Google. Right seems the time that Oracle sued Google, it seemed like Google owed Oracle at least $10 billion. After every setback that Oracle had, from the number of patents being shrunk, then from the patents being rejected out by the USPTO, losing the patent trial, and on an on, it still seemed like Oracle was kicking Google's teeth in - or just about to. Same thing with the Apple lawsuits against Samsung in Germany, Netherlands, Italy and Australia. Every temporary Apple victory is lionized and overturned ruling is marginalized if acknowledged. I simply fail to understand how he can still be quoted.

[eriksherman]

His point, which is correct, is that patent litigation is a long-term process - years. And Android vendors are coming up on the wrong side of decisions a significant number of times. And for a judge to grant two preliminary injunctions? It's really unusual. You don't have to lionize anything to see that the situation is potentially dangerous for Google. That doesn't that Android vendors will always get whacked, but the more often rulings go against them, the greater a chance that something serious will happen.

[JohnnyGnu]

"Android has half of U.S. market, but for how long?"

here are the articles in the sci/tech section of the news today: Android 4.1 Jelly Bean review, HTC One V Available for US Cellular Customers Today, The DROID Incredible 4G LTE By HTC Set To Launch On July 5TH At Verizon ..., ATandT Samsung Galaxy S III Available Friday, July 6..

until you can stop the nonstop onslaught of Android phones on carrier after carrier, Android is going to continue to be half the market or more-

[eriksherman]

The problem is that so many of the sales are concentrated in Samsung's hands. Also, if Apple can nail enough victories with them, are you really sure that the others that use Android aren't vulnerable?

[eriksherman]

Doesn't matter how many there are. What matters is if vendors can get to market with what they see as a reasonable amount of risk. That's the potential issue for Google.

[JohnnyGnu]

Nobody wants Windows Phone. It is a fact. After the ATT campaign and the Nokia Lumia 900 commercials, their market share went up 0.1. Blackberry has greater market share. I personally freaking hate Metro UI and a lot of people I know do too. Tiles suck compared to widgets and icons. The whole Windows 8 browser in metro, browser in classic gui is rediculous. Bing maps is retarded. I don't really see any new features in WP8 either. You have to have Zune to sync media and you can't drag and drop. You can't send files over bluetooth. There is no file manager at all. No thank you WP8. The world doesn't need another Apple...1 is already too many!

[eriksherman]

So how do you explain 4% market share so far? And if vendors wind up not being able to safely use Android, they'll need something.

[scottpk]

Sounds like a specious argument to me. What, so nobody will be buying an Android phone because HTC and Samsung are having their phones banned? With so many other companies selling Android phones, that's ridiculous. Samsung and HTC are popular, yes - but I don't see Verizon abandoning the DROID line, and I don't see Google giving up on the Nexus brand.

Will Android's marketshare go down? Probably - by definition it's almost guaranteed this will happen as new competitors rise to the challenge. Will it go away? No, or at least not for the foreseeable future.

[dkunzman1]

Not counting that there have been no challenges to the patent validity yet. Now with Google entering the fray you will. Most people do not realize that Google has a seriously good legal group.

[eriksherman]

If the vendor and product models didn't matter, why is there so much concentration in one vendor's hands?

[n0cu]

Erik - I know you are trying to make a case for Apple but.. First, as technology involves which is involving at a rapid rate chances are every new device will have legal issues of some sort with other different manufactures. Apple also has it's share of lawsuit from other manufactures in fact I think the lack on innovation is causing them to rely on Lawsuits to hold products from the market, however other manufactures will start to do the same thing as well. As Steve Jobs said "great artist steals" and we'll soon find out that Apple stole more than any other manufacture. Anyway be a professional and don't take sides. There is more Android readers in the world than iOS.

[eriksherman]

I'm not trying to "make a case for Apple." I'm not a fanboy, don't use Apple products, and am unconcerned if Android does better. (In fact, I use an Android smartphone and tablet.) But it's important to look at the dynamics and consider what is possible when you'r thinking about business. The Android camp is on the short end of a surprising number of patent infringement suits. That has potential implications for the people who run hardware companies, and they think differently about such things than consumers. Considering possible outcomes is hardly taking sides.

I've wondered on this blog about whether Apple was becoming more ordinary in terms of innovation. I also wonder if the attention to the lawsuits is taking away important resources from innovation.

[hypnotoad72]

Agreeing with eriksherman on this as well. I've read his posts in the past and he doesn't come across as a fanboy for anyone.