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Summary:

Google and Microsoft traded more barbs today in their patent squabble. Google said Microsoft’s offer to jointly bid on the Novell patents was a trick. Microsoft said today Google is only interested in using patents against others. The rhetoric, however, doesn’t improve Google’s fighting position.

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Well, it’s been a fun 24 hours in the increasingly contentious world of tech patents with Google claiming Android competitors were conspiring to strangle the mobile OS with “bogus” patents, only to have Microsoft fire back that it actually offered to go in together with Google on a bid for the Novell wireless patents last year.

While many derided Google for bringing a knife to a gunfight, Google has responded today saying that Microsoft is trying to pull one over on everyone. Google’s David Drummond, SVP and Chief Legal Officer, said Microsoft’s offer to cooperate on the Novell bid was a “false gotcha,” that wouldn’t have necessarily afforded Google or other Android partners any protection had Google jointly purchased the Novell patents.

“Microsoft’s objective has been to keep from Google and Android device-makers any patents that might be used to defend against their attacks. A joint acquisition of the Novell patents that gave all parties a license would have eliminated any protection these patents could offer to Android against attacks from Microsoft and its bidding partners. Making sure that we would be unable to assert these patents to defend Android — and having us pay for the privilege — must have seemed like an ingenious strategy to them. We didn’t fall for it,” Drummond wrote.

What he means is that even if Google had won the Novell patents with Microsoft, Microsoft could have still licensed those same patents to another company, who could have in turn sued Google or other Android licenses. And then the Novell patents would not be a deterrent any more against attacks or would be weak leverage to force a cross-licensing deal.

The Novell patents were eventually bought by Microsoft, Apple, Oracle and EMC. But the Department of Justice in April ordered that the patents should be available for licensing at a fair price. Google is now hoping to get the DOJ to do the same with the Nortel patents, which Apple, RIM, Microsoft and others purchased for $4.5 billion last month, beating out Google in the process, something Google called “anti-competitive strategy.”

Frank Shaw, Microsoft Head of Communications, responded to Drummond’s latest comments on Twitter explaining why he thinks Google turned down Microsoft:

“Because they wanted to buy something that they could use to assert against someone else. So partnering with others & reducing patent liability across the industry is not something they wanted to help do.”

Drummond and Shaw raises a good points. Google wouldn’t want to buy something if it didn’t provide blanket protection. But Shaw points out that Google is only interested in using patents to force cross-licensing deals for itself.

The back and forth is certainly entertaining. But it still doesn’t undercut some of the other criticisms that Google has faced in the last day concerning Drummond’s original remarks. As John Gruber and others have pointed out, Drummond is quick to call the patents used to attack Android “bogus” but it didn’t say which ones nor did it explain why it was anti-competitive behavior when Apple and other bid on the Nortel patents but why it would be different if Google had won. And as some like Paul Thurrott have pointed out, Google is able to leverage its dominance in one market to offer a free product in another, disrupting the business of Microsoft, Apple and others.

Despite all the rhetoric, Google is in a tough spot. It has to obtain more patent heft. The company continues to rail against the patent system but has to work within it to compete. At some point though, if Google can’t come up with the necessary leverage or protection from regulators, it will have to start paying up. And that, Android’s competitors would probably argue, wouldn’t be anti-competitive but would actual restore competition, forcing the formerly free Android to compete against paid operating systems. We’ll just have to see whose definition of anti-competitive wins out here.

  1. On the surface of it, it seems that Google legal wanted to go it alone on the IP purchase (high-risk scenario), lost and then is now complaining about the result after the fact.

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    1. On the surface, you appear smart, but if you think about it for a second, you appear like an idiot.

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  2. It’s great to see the big players do slugfest rounds and kabuki dances with each other because that means clever startups can slip in through the cracks ;)

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    1. I have a question. HOW?

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  3. “What he means is that even if Google had won the Novell patents with Microsoft, Microsoft could have still licensed those same patents to another company, who could have in turn sued Google or other Android licensees.”

    No, Shaw gets it right in the later comment. If Google had teamed up with Microsoft, both companies would have had a license. This means Google would be protected from patent claims, but since Microsoft would too, Google wouldn’t be able to use them to fire back.

    All of this was pretty apparent yesterday if not said explicitly. Of course, Google didn’t want to pair up because they don’t want a shield, they want a sword (even if it were a defensive sword). Today’s statements seem to me to jsut further paint Google into a corner: we don’t want to partner up, and we don’t want patent protection, we want weapons, because we have nothing in the arsenal. Yup, hypocrisy.

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    1. What hypocrisy? OK, then tell me what you understand by “defensive patents”?

      Defensive patents are patents you can actually USE against those attacking you. Novell patents would’ve been useless for Google if Microsoft had them, too.

      Imagine this scenario. Google buys Novell patents together with Microsoft. Then Microsoft is still free to use all their other patents against Android manufacturers, and Google can’t do anything about it, because the Novell patents are also owned by Microsoft, and Google can’t leverage them.

      Now imagine this scenario. Google gets the Novell patents. Microsoft doesn’t. Now if Microsoft wants to threaten Android manufacturers to pay up, or they’ll sue, Google can threaten them back with the Novell patents – and thus the “defensive” patents have worked!

      And THAT’S the scenario Google wants to be in. What you are actually arguing about here is that Google should not have defensive patents. How else are they supposed to defend themselves against the lawsuits if they don’t have some patents to defend themselves?

      And Ryan, so what Google offers Android for free? It’s their strategy, just like with Gmail, and Analytics, and Maps, and so on and so on. It’s not like they are the first company to offer a service or product for free, in order to sustain their main business. You’re choosing Gruber of all people to believe on something about Android? You should’ve read the backlash against him on HN.

      http://news.ycombinator.com/item?id=2843615

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      1. you know what now Microsoft has its own patents and Novell patents to go against Google! Google could have reduced the risk if it was involved in Novell patents. I like Google, but I dont like when it behaves like a cry baby!!!

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      2. You are either foolish & don’t understand the scenario, or are ignorant enough to not try to. Google is trying to protect the Android Ecosystem in general. There are frivolous patents that Microsoft is claiming licensing fees for every android device shipped from their manufacturer (like HTC,Samsung, Motorola …. ), when google gives out the OS for free.
        The US patent system is badly broken, it barely encourages/protects innovation. Its become a weapon for big companies to fight each other. People or small entities can barely afford to be in the game.
        This country has more lawyers than rest of the world combined, its for you to judge where the problem lies.

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      3. grantmcwilliams Friday, August 5, 2011

        Has anyone ever heard of Google going after anyone for patent infringement? How about Apple or Microsoft? Hmmm.

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      4. I know exactly what Google wants, but as a great man once said, “You can’t always get what you want.” Taking fully into account exactly what Google wants, I see zero evidence of a cabal of anti-competition — and I do see evidence of others trying to work with them — whether or not it would have got them exactly what they need.

        The fact is Google can get “some” patent protection and their are other patents that they know they are exposed to that they can’t get easy access to. Actually protecting its partners would mean engaging in cooperation to get any and all protections they may need, not just walking away with ZERO protection because they couldn’t get a broadsword.

        Moreover, why am I even answering someone who goes to utter absurd limits to defend everything Google — for example, claiming GoogleTV’s failure is not Google’s?

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    2. Google sued Cynogen for having a slightly modified android, this is open source software so such action by Google is Illegal…as most of the software in android comes from other open source projects not owned by Google
      http://androidandme.com/2009/09/hacks/cyanogenmod-in-trouble/
      A tale of two googles?
      http://www.bloomberg.com/news/2011-07-26/google-general-counsel-says-patents-are-gumming-up-innovation.html

      It’s strange in that Nokia is the second largest contributor to the Android code base on the basis of the Amount of Nokia commited/supported software in Android (essential things like Bluez (Blue tooth library), Dbus and Maliit (virtual keyboard) are Nokia owned open source projects with Nokia patents implement in them, so under this premise that Google sued Cynogen Nokia should have the right to sue Google.
      http://carlodaffara.conecta.it/nokia-is-one-of-the-most-active-android-contributors-and-other-surprises/

      Google was complaining when they claimed Microsoft was copying their search results..if they don’t respect other peoples I.P then why should other people respect theirs?
      http://thenextweb.com/microsoft/2011/02/04/the-great-google-v-bing-slap-fight-explained-piece-by-piece/

      Google knowingly ripped off Sun’s (now part of Oracle) java.. as evidenced by an internal memo, when they knew they had to pay a license , some how the rule’s don’t apply to Google.
      http://techland.time.com/2011/07/22/judge-in-googleoracle-lawsuit-youre-both-asking-for-the-moon/

      Google sues the government when it doesn’t win a deal
      http://www.zdnet.com/blog/microsoft/google-sues-us-government-over-hosted-e-mail-bid-against-microsoft/7859

      Google sues a small company with “web tools”
      http://www.pcworld.com/article/184003/company_sued_by_google_had_a_profitable_year.html

      Google is like any other large American co-operation, they are self seekingly creating a monopoly, blocking/buying out small innovative competitors and only caring for their interest’s, they should just have the decency not to try and make themselves appear saintly.
      http://tvnz.co.nz/technology-news/google-sued-french-competitor-4271214

      http://www.switched.com/2011/03/22/n-y-court-rejects-settlement-in-lawsuit-against-google-books/

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      1. Google went after Cyanogenmod for the closed-source Google experience apps that were bundled with the ROM. They have no problems with the AOSP ROM without the closed-source apps. FWIW, pretty much all apps in Android are closed source. The ROM, if derived from the AOSP project, is open-source under GPL (for the Linux kernel) and Apache License (for the rest of the stack). Cyanogenmod still ships *only* the open source stuff, while the rest of the apps can be backed up from the stock ROM and restored through Titanium Backup. This was the compromise stuck between Cyanogenmod and Google.

        The Bluez, Dbus stack comes from Freedesktop.org which is used in all Linux distros. So its the community that owns the project…and not any single entity. Maliit is a project which is also from Freedesktop.org and is used actively in GNOME. They are *not* covered by any patents. If they were, they wouldn’t be included in any Linux distro. That is the nature of the GPL license. Nokia has *copyright* on the work and not a *patent*. Get your facts straight between a *copyright* and *patent*.

        Google suing the government has nothing to do with patents. The argument is about software patents and not business suing to get more business.

        Google has maintained that the Dalvik has been forked from Apache Harmony and thus does not infringe on Java patents. Besides, 120 claims were asserted against Google by Oracle, they came down to 12 and 10 have been invalidated by the USPTO..so it comes down to 2 for a jury trial.

        Blame the flawed USPTO for awarding senseless software patents…

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  4. Digitalpersona Thursday, August 4, 2011

    Is the dispute over Nortel or Novell patents?

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  5. What is free? nothing! Google doesn’t push Bing or ios or Blackberry, Why not? its free for Google to do so. Google would not be a massively rich company if it was giving “free”, can’t, does not add up. They sell a lot, just not consumer products, they sell consumer data. I poses this question; What restaurant would you eat at?; one that bills you for the ambiance, service and food. Or one that pitches sales, monitors your behavior, non obtrusively, but its there, in return for ambiance, service and food. Its not altruism, the target is people who have money to spend. This model is probably the tip of the iceberg in what society is going to deal with in advertising berried in products. The implications are big. Any powerful agenda can subsidize this model, like a fog, a network of implied consent enveloping society, controlled information. Ok, I’m being cynical, but remember war? maybe the ultimate sacrifice, yet we have war. Do you think information control is not something of power? Sometimes we are myopic and sometimes the taste of money corrupts our view skewed through the lens of justification. Any agenda can use the tools available. Remember war, its naive not to consider human nature. Its ironic the add/data collection model is advocated by people who care about free and open. In the future products not subsidized through this model will be considered premium, ironically they will be considered free, free from the grid of subsidized agendas. We will remissness the good old days of paying for a product with out strings attached.

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    1. I agree. It’s especially dangerous for one company to own all your personal information and habits. That’s why I’m not too fond of Google+.

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    2. Dave wrote: “They sell a lot, just not consumer products, they sell consumer data.”

      Wait what?! Where can I buy this consumer data? How? For how much? This accusation about Google is a total lie! If you can prove to me that Google is selling consumer data to ANYBODY, I will eat the shoe that I am wearing right now.

      Lots of people make this claim about Google. They think that just because other sleazy companies do that, Google does it too. FYI, Google’s Adwords and Adsense products do NOT work by selling consumer data. If you have a semblance of intellectual curiosity, please research how Adsense and Adwords work on your own. Until then, if you have some ethical integrity, please refrain from making untruthful statements on things you know nothing about.

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      1. Anon, for one you buy the info by using Adsens, without consumer data their is no cents in Adsens which makes no sense for a capitalist. A guy once ate a bicycle for a TV show called “That’s incredible” his method was to cut the bike into pill size pieces, swallowing bit by bit with water. But I don’t think its a good idea to eat a bike or a shoe.

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      2. @Dave – You have showed your lack of intellectual curiosity by not looking up how Adsense works before posting another stupid comment. Your last comment only shows your ignorance.

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      3. A S, semantics has obstructed your view, cant see the forest for its trees. Ask yourself: self how can I target an add without first having a target? Self whose data is targeted if its not the users?

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