More on Google and Patents

Friday, 5 August 2011

Kevin Fox:

Bidding in partnership with a competitor is helpful when your goal is to have unrestricted license, or when the company you’re climbing in bed with is not one that you want to either take legal action against or protect yourself from.

In October 2010, Google’s primary motivation was reason #3: To build a defensive portfolio against Microsoft and others. Sharing the patents with Microsoft would nullify that advantage.

I don’t think “offense” and “defense” are the right way to look at this. It is true that Google wasn’t trying to acquire these patents to sue others, but rather to keep itself (and its Android handset maker partners) from being sued. But the bottom line is that they wanted to use these patents competitively. Google wanted this newly available pile of old patents to give itself a stronger negotiating hand regarding all the other existing patents that Android — purportedly — violates.

Some people seem to think that Android doesn’t really violate any existing worthy patents. That it’s all just a bunch of bogus patents that never should have been granted, and companies like Microsoft and Apple are just tying up Android handset makers in court out of dishonest competitive spite. If that’s the case, then I suppose you can argue that Google’s pursuit of these patents was out of the goodness of their corporate heart.

But if Android does violate worthy patents, Google’s actions here are just as competitive as any other company’s. You can guess which side I’m on, I suppose.

And yes, there are some who will argue that there are no “worthy patents”, that the entire U.S. patent system should simply be abolished. That’s not going to happen. Google’s blog post comes across as whining that Apple and Microsoft (Microsoft especially) aren’t sitting back and allowing Android to destroy their businesses. Maybe the patent system should be killed. It certainly should be reformed. But these are the laws we have. Google’s ace in this fight: search revenue. Microsoft’s ace: its patent library. You fight with what you have.

Google could have joined the consortium to take the Novell patents off the table. But Google wanted those patents for itself to defend against other patents they already infringed upon.

Here’s Fox again, posting a day earlier on Google+, criticizing my piece calling out Google’s hypocrisy:

Read his post, judge for yourself, and ask yourself (and perhaps him) why it’s okay for Apple to buy patents and sue people for violating patents, but it’s not okay for Google to try and buy the same patents to not be sued.

I never said it wasn’t OK for “Google to try and buy the same patents to not be sued.” Apple, Google, Microsoft, Oracle — they’re all playing the game. If Google had won the Nortel patents, and used those patents to secure licensing agreements for other patents (from, say, Microsoft and Apple) — that’s how the patent game is played. What I’m complaining about isn’t Google playing the game, but rather their insistent whining about their competitors only after they lost the game.

It’s OK for Google to undermine Microsoft’s for-pay OS licensing business by giving Android away for free, but it’s not OK for Microsoft to undermine Google’s attempts to give away for free an OS that violates patents belonging to Microsoft?

If it wasn’t okay for a company to undermine another company’s software dominance by offering their product for free, you’d still be paying for the latest version of Netscape Navigator.

I never said it wasn’t OK for Google to give Android away for free. What I’m saying is that it’s also OK for Microsoft to assert that Android can’t be free of charge, because it violates a bunch of Microsoft’s patents. This is exactly the intended purpose of the patent system.

Google seems to feel entitled to copy whatever it wants. Android copies the UI from the iPhone. Places copied data from Yelp. Google Plus copies from Facebook. Their coupon thing is a clone of Groupon. And yet it’s Google that acts as though it has been offended when these competitors fight back.