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Google’s Apparent Patent Swing and a Miss



If part of a company’s game plan to defend against a perceived wrong doing against them involves firing off allegations, one would guess that those said allegations should be bulletproof, right?

Maybe Google’s SVP and Chief Legal Officer David Drummond should have done a little more homework before he accused some big names of playing patent pranks on the search company. Here’s the gist of his claim from the Google blog

But Android’s success has yielded something else: a hostile, organized campaign against Android by Microsoft, Oracle, Apple and other companies, waged through bogus patents.

They’re doing this by banding together to acquire Novell’s old patents (the “CPTN” group including Microsoft and Apple) and Nortel’s old patents (the “Rockstar” group including Microsoft and Apple), to make sure Google didn’t get them; seeking $15 licensing fees for every Android device; attempting to make it more expensive for phone manufacturers to license Android (which we provide free of charge) than Windows Phone 7; and even suing Barnes & Noble, HTC, Motorola, and Samsung. Patents were meant to encourage innovation, but lately they are being used as a weapon to stop it.

OK, so Google feels like it’s getting unfairly beat up in this process. It’s not like they don’t play this game themselves with the recent purchase of patents from IBM. Drummond’s claim, however, goes into an area where he says the competition has done some shady stuff which will result in some regulatory scrutiny.

This anti-competitive strategy is also escalating the cost of patents way beyond what they’re really worth. The winning $4.5 billion for Nortel’s patent portfolio was nearly five times larger than the pre-auction estimate of $1 billion. Fortunately, the law frowns on the accumulation of dubious patents for anti-competitive means — which means these deals are likely to draw regulatory scrutiny, and this patent bubble will pop.

So Google cries foul. Why not I suppose? Everyone seems to be taking shots at them these days.

Trouble is that the following salvo has been fired back by Microsoft. Rather than go the full blown blog post route, however, Microsoft decided to microblog instead. The following two tweets show just how powerful 140 characters or less can be. Or, in other words, speak softly and carry a big tweet.

First from Microsoft’s general counsel, Brad Smith.

Next from Frank X. Shaw who leads corporate communications for Microsoft

The URL in that tweet is an e-mail from Kent Walker, Google’s very own SVP and general counsel. It’s a bit hard to read but it essentially tells the story that Google turned down the opportunity to bid jointly with Microsoft.

Now, to be fair, the e-mail doesn’t mention the Novell patents so, in fine lawyer fashion, Walker said something without saying something. Gotta figure though that Smith and Shaw checked in with each other and decided they could throw a haymaker at Google on this one.

So what’s the net / net here? Google looks whiny and ill prepared. Microsoft, Apple and Oracle look like they are doing what others do in business but could very well feel the sting of a regulatory investigation into anti-competitive claims. In this current political environment it looks like no one is safe from that possibility at any time for any reason.

In the court of public opinion, however, it looks like Google is out in the cold here. If you were asked to go play with someone, say no to the offer, then complain that the someone still played without you, you look bad.

Oh and the extra cost of each Android device? Why don’t you just eat it Google? You have the cash.

  • http://www.hallingblog.com Dale B. Halling

    Thanks Frank for one of the most balanced articles on this issue. One question that never seems to get asked today is did Google or Andriod developers ever undertake a clearance search before they started building their products? If I build a house, I first have to make sure that I have title to the land and make sure I have a survey of the land. This is just basic due diligence. But software developers do not believe they have to undertake a similar survey to make sure they are not using (building on) someone else’s property. In fact, most of corporate America operates under a policy of purposeful ignorance. They tell their engineers and lawyers not to do undertake a search, because it might subject them to 3X willful damages. We should not be rewarding this purposefully negligent behavior.

  • mtelesha

    Frank,

    Are you saying that all this patent litigation is OK and fine and that Google should have joined in with the others in buying the patents? This really is a arms race in which everyone needs patents that will hurt everyone else. That way Company A can’t be sued by Company B since they both have doomsday devices for each other.

    What happens to start ups? How does this help the inventor of patents? How does this spur on further invention? The patents are int he US Constitution for the purpose of people would have to hide their inventions and then no one would learn. This American Life has a great episode on this last week.

    Patents are revolutionary things that would make sense to a common person and is not common thought process from a person in the industry. 250,000 patents on smart phones???? 250,000 revolutionary things????

    We have Armageddon happening in the technology field and it is costing us dearly. Costing us as consumers who have to pay for companies to spend billions on patent pools. Cost us jobs since who in the world can have a start up and fight event he most bogus of patent claims except people with deep resources? Cost tax payers millions in operation of the courts. Costing us job due to lack on innovation.

    So the issue is not about Google this or that or even MS, Apple and Oracle. The issue is patents and this horrible system that is destroying so many things. Who is being helped by the selling and transferring of patents? 250,000 patents and how many are not just wording the same thing. Toast was patented in 2000. Apple patented multi-touch on a mobile device after Microsoft patented multi-touch on their surface. So it was a revolution that we had multi-touch on a mobile device as opposed to surface or desktops? Its broken and we are all the worst for it.

    • http://www.marketingpilgrim.com Frank Reed

      @mtelesha – Actually, I didn’t take any sides. It’s just an interesting piece of business “battle” as to how it’s handled. I have no influence on whether this patent buying practice is done or not so for me to say “It’s bad” or “It’s good” makes no sense. Corporate sword fighting though? I’m all over that!

      • mtelesha

        @Frank Reed But this “side” is really a bigger issue in terms of this is Google’s weapon and offical position. Does this side that Google is using as a weapon have merit? I think this had everything to do with Google not joining in with the others. Why Google bid pi, 3.14 billion. The weapon from Google now is a broken patent system. This topic is finally getting some attention from outside of technology.

        To me it’s not interesting the stances are as much as it is such an impact on all of us as consumers of technology. What will this world look like in 20 years if one side wins? I know what side I want to keep the other side from winning.