Google Fires Back At Microsoft’s Patent Offer: ‘We Didn’t Fall For It’

David Drummond

Google (NSDQ: GOOG) confirmed Thursday that it had been extended an offer to join Microsoft (NSDQ: MSFT) in trying to purchase patents from Novell last year, but upped the war of words brewing over the last few days by suggesting that Microsoft would not have given Android a break even if they had teamed up on a patent deal.

In an update to an incendiary blog post from David Drummond, Google’s chief legal officer, Google acknowledged what Microsoft’s Brad Smith and Frank Shaw claimed on Twitter Wednesday evening following Google’s attack on Microsoft, Apple, and others suing Android vendors over patents. There have been two major patent auctions over the past year: the Nortel auction in June that got a ton of attention, and a smaller one involving patents from Nortel that was won by a consortium that included Microsoft, Apple (NSDQ: AAPL), Oracle, and EMC.

Smith had claimed Drummond was being disingenuous by asserting that Microsoft wanted to buy the Novell patents in order to deny them to Google, but Drummond didn’t back down Thursday.

It’s not surprising that Microsoft would want to divert attention by pushing a false “gotcha!” while failing to address the substance of the issues we raised. If you think about it, it’s obvious why we turned down Microsoft’s offer. 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.

Patent experts quoted by The New York Times Thursday confirmed Drummond’s account, that Microsoft could have chosen to license patents obtained in a group to anyone they chose without Google’s approval. Patent disputes among big companies aren’t all that different from the principles of mutually-assured destruction that somehow kept the world in check during the Cold War: disputes are usually settled without resorting to courtroom battles because big companies tend to have patent portfolios that overlap competitors’ products. That’s what happened recently with Apple and Nokia (NYSE: NOK), and Google is desperately trying to acquire its own set of mobile patents in order to ensure it can countersue companies that sue it for patent infringement.

Microsoft and its partners in the Novell patent deal were eventually forced by the U.S. government to sell off some of the patents and make sure licenses were available to others. Google has sought similar measures following the Nortel patent deal, but the Department of Justice has yet to weigh in on the matter.

There’s little doubt that the patent system is a complete mess, and that no one who plays this game really comes out looking all that stellar. It’s a little puzzling why Drummond would have included the Novell patent auction in his blog post, as the points he was trying to make wouldn’t really have been diminished by its omission.

But hey, public spats between multibillion dollar companies are great for the tech media business.

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