04
Aug
google-robot

When Google's General Counsel, David Drummond, posted the first real public response by the search giant to the intellectual property war being waged on Android, the techblogosphere just about peed their collective pants in excitement. Everyone loves a good flame war, it's true. Google called out Microsoft, Apple, and Oracle - by name - publicly. It doesn't get much better than that.

Unfortunately, this probably isn't going to help Google's ongoing battles with those companies, and it's not going to help the company's public image, either. Google isn't a tech startup anymore, they're a multinational corporation. And we need to start looking at them that way, especially when it comes to lawsuits.

Google continues painting itself as an underdog to these "titans of tech" - but that notion is just factually untrue. Google is rated as the world's second most valuable brand, at $111 billion. Who are they second to? Apple, of course. But what about the rest of the "axis of evil" against Android? Microsoft ranks fifth, and Oracle sits all the way down at 22. So, Google calling Microsoft, Apple, and Oracle "bullies" is really a statement that should be taken with a very large grain of salt. While brand value obviously isn't the best way to measure a company's economic clout, it's a simple yardstick that's suitable for this kind of basic demonstrative purpose: showing that Google is, indeed, one of those titans.

So that brings us back to the patent drama and David Drummond's comments - just how much weight should we be giving them?

Who Do We Believe?

Update: Drummond has provided a counterpoint to the e-mail offered by Microsoft, take it for what you will:

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.

Ultimately, the U.S. Department of Justice intervened, forcing Microsoft to sell the patents it bought and demanding that the winning group (Microsoft, Oracle, Apple, EMC) give a license to the open-source community, changes the DoJ said were “necessary to protect competition and innovation in the open source software community.” This only reaffirms our point: Our competitors are waging a patent war on Android and working together to keep us from getting patents that would help balance the scales.

Shortly after Drummond's post on the official Google Blog, Microsoft's head of PR posted a very interesting, and frankly, very curt, e-mail from one of Google's legal counsel, Kent Walker, to Microsoft:

email

This e-mail is in reference to the Novell patents that Microsoft and Apple, amongst others, bid on and jointly purchased last year. Google was invited to the party, apparently. This stands in pretty stark contrast to Drummond's remarks from yesterday:

They’re doing this by banding together to acquire Novell’s old patents (the “CPTN” group including Microsoft and Apple) ... to make sure Google didn’t get them.

We can attempt to delve into the reasoning Google had for deciding not to make a joint bid on the patents, though that's just going to be speculation. Regardless of the reasoning, those two statements don't jive, and I'd be pretty embarrassed if I were in Drummond's shoes right now.

The point of Drummond's blurb about Novell was clearly to paint Google as the victim of a conspiracy. A conspiracy Google was asked to participate in. My first thought was, "Well, maybe Google philosophically disagreed with the practice of buying up those patents at the time, but changed its mind when the Nortel patents came along." But the e-mail from Walker shows that isn't the case, either, when he says "we're open to discussing other similar opportunities in the future" - nearly a year ago.

It's not exactly damning evidence, and it doesn't make Microsoft, Apple, or Oracle's patent lawsuits look any more legitimate, but it certainly gave me pause long enough to start considering Google's motives. Google is a multi-billion dollar company. They're protective of their products, they want to keep investors happy, and to appear confident to attract business partners - like any major corporation. There's nothing wrong with that, per se, but it can lead to a bit of PR puffery sometimes. And I believe that's something we should all keep in mind when we read these sorts of official statements.

Anyway, what about those lawsuits?

Yeah, A Lot Of The Patent Claims Are Patently Bogus

I'm still with many of you on this one - to a point. Most patent claims I've seen (at least those I could remotely understand) against Android look very, very sketchy - you don't have to be a patent attorney or a programmer to see that. They're often based on patents with extremely broad language that probably shouldn't have been awarded in the first place, but that the USPTO awarded anyway because during the 80's and 90's, the Federal Circuit Court of Appeals overturned more USPTO software patent rejections than you could shake a stick at. So, the USPTO became complacent and started handing out software patents like Oprah hands out cars. (Of course, they've started biting back - giving preliminary rulings holding some of Oracle's patents-in-suit against Google to be invalid.) This led to patents being awarded that, in hindsight, definitely should not have been.

This isn't right, and it's certainly a glaring problem with the patent system. No one really has a good grasp on how to fix it - many argue that software patents should be abolished altogether, but that's just not going to happen. There's been some speculation that the Supreme Court of the United States has the power to do this, and while they do have the power, they're not going to use it. At least not any time soon (read: this decade). In fact, SCOTUS has heard a number of cases which clearly validated the existence of software patents.

“It is said that the decision precludes a patent for any program servicing a computer. We do not so hold.” Gottschalk v. Benson, 409 US 63, 71 (1972).

Anyone telling you that somehow a judicial "ban" on software patents was lost and misconstrued over the years is just plain wrong. The court explicitly banned "mere algorithms" - software patents are well-within the established bounds of patentable material, so long as they meet certain requirements.

Are many of Apple, Microsoft, and Oracle's claims against Android dubious? Probably. But it's not like Google is without recourse, and they're fighting these attacks where and when they can. Google isn't helpless; they can buy up patent portfolios, they can rewrite portions of Android, they can petition the Department of Justice to conduct an investigation into anti-competitive practices, and they can even (gasp) settle! And it wouldn't be the end of the world, guys. This is a reality of business in the tech industry, and Google is getting a crash course.

Conclusion

So, what I'm left seeing is this: Google, acting like every other corporation on the planet when faced with litigation by its competitors. They'll stretch the truth, they'll make apocalyptic portents, they'll see a conspiracy around every corner - and it's normal. I get it. I just think we all need to take a step back and realize that every story has two (or more) sides, and that as much as we love Google and its many wonderful products, a little skepticism is healthy - even if a lot of this litigation is really just a guise for a smartphone market proxy war.

I think we can all agree on at least one thing, the patent system clearly needs a modern overhaul. Who's going to do it and how or when, I can honestly say I haven't the slightest idea. But let's hope they don't take too long.

David Ruddock
David's phone is whatever is currently sitting on his desk. He is an avid writer, and enjoys playing devil's advocate in editorials, and reviewing the latest phones and gadgets. He also doesn't usually write such boring sentences.

  • Alex Hernandez

    Nice Article. Great points here. And perfect perspective. Grow up Android and quit playing victim. That email from MS kind of puts Drummond in the "boy who cried wolf" spot.

    ~Android user~

  • Matt

    Hardware=patent
    Software=copyright
    Sounds logical to me.

    • https://plus.google.com/117702410245683101961/posts Lucian Armasu

      That's exactly what Oracle was calling for before, you know, they started suing Google.

      Oracle Corporation opposes the patentability of software. The Company
      believes that existing copyright law and available trade secret protections,
      as opposed to patent law, are better suited to protecting computer software
      developments.

      Patent law provides to inventors an exclusive right to new technology in
      return for publication of the technology. This is not appropriate for industries
      such as software development in which innovations occur rapidly, can be made
      without a substantial capital investment, and tend to be creative combinations
      of previously-known techniques.

      http://www.ibiblio.org/patents/txt/020294.txt

      • David Ruddock

        Lucian, when was this written? Interesting little tidbit, by the way - thanks for the read.

        • NolF

          The name of the file would suggest Feb 2 1994, but some googling suggests there may have been pieces of it released in 92 and 93.

  • http://mindmirror007.blogspot.com alchemist007

    I think this so called "Editorial" is a little premature, and I don't think Google is just playing "victim" so they can get public sympathy!

    "We can to probe into the reasoning Google had for deciding not to make a joint bid on the patents, though that's just going to be speculation."

    This sentence really makes me laugh! We, who? AndroidPolice can probe? And usually when you probe, the idea is to find facts, not speculative answers!

    I like AndroidPolice and love to see you guys keep doing what you do best, but this write up is just over the top!

    • David Ruddock

      You have a point on probe. Word changed.

    • Aaron Gingrich

      Agreed.

    • http://lettersfromdave.wordpress.com daveloft

      Well they probably wanted the patent to protect themselves from Apple and Microsoft.

      So jointly buying the patents with them make it kind of pointless, does it not?

      lol, I just read Google's response and it says what I just did. It makes perfect sense.

  • Adrian Lorenzana

    I can still sympathize with google, just because they are ranked more valuable doesn't mean entirely that much (to me). They are still sort of bullying google by abusing the patent system and googles value in the tech market doesn't really help them fight back.

    Also, I believe a joint bid for those patents would be an unwise move on googles part if they planned to use them for defense. As far as I understand, owning patents for these companies is about saying "If you sue me, I'll just sue you back and make you lose more money because I have more patents", and if, say, google and Microsoft both owned these patents and Microsoft sued, then it wouldn't help google that they also owned the patents because Microsoft has the legal rights to use them.

    Just my two cents I'm not trying to flame or anything.

    • http://mydigitalrant.com Robbie P

      I agree here, too -- not to mention the fact that the patents they've been sued over aren't really things that you can re-write. Many of them are just so unbeliveably broad they don't count for anything. See this post on Forbes: http://blogs.forbes.com/timothylee/2011/07/07/microsofts-android-shakedown/

      Where he talks about patent law and lawsuits -- it's unreal how the industry is turning. IF we have patents on software there needs to be a sunset clause of 3-5 years to allow innovation and free us of these rediculous lawsuits.

    • http://schpydurx.livejournal.com ProfessorTom

      I'll just leave this here: Android Mystery Numbers

  • http://www.theandroidsite.com Ben Marvin

    Google just posted an update on the blog post in response to Microsoft's answer: http://googleblog.blogspot.com/2011/08/when-patents-attack-android.html

    Makes sense. Would help if I understood more about how joint patent ownership worked.

    • David Ruddock

      Still, the purchase would have neutralized the offensive capability of those patents, which is something I would think Google would have been interested in.

      It's a point, and a legitimate one, but I still think Drummond is in contradiction regarding his first statement.

      Thanks for the link, by the way.

  • ABTBenjamins

    At the time, given Google's knowledge of the patent market as it was, it was possible that they chose to pass on a patent they legitimately weren't interested in or concerned with. With the Android market share being what it was at the time of the purchase, Google probably didn't foresee any reason that these corporations would want to target their brand.

  • Alan

    Don't get me wrong I love Android but in this case I have no sympathy for Google.

    Why, they had a chance to jointly own these patents and they chose not to, but calling out Microsoft, Apple and Oracle for "purchasing" those patents without them is wrong.

    So the headline "Google Needs To Stop Playing The Victim, Even If The Patent System Is Broken" is, IMHO, quite right.

  • montgoss

    "Google isn't helpless; they can buy up patent portfolios, they can rewrite portions of Android,"
    No, they can't just rewrite portions of Android. If they were copyright claims, then sure. But these are patents. It doesn't matter what code you use, if you create a method to buy something in one click, you've violated a patent and can/will be sued!

  • Josh Kuhn

    I think "playing the victim" in this case is really just Google trying to publicize the problems with the patent system. It doesn't sound like they are trying to act like a smaller company than they are, it sounds like they are saying "Hey, we're a huge company, and the patent system is still a huge thorn in our side". At the end of the day, reforming the patent system just amounts to lower operating costs for tech companies. Software patents are clearly bogus, but if all large companies just keep "sucking it up" and paying the ridiculous money it costs to play the patent game, there is no chance of the public latching onto the issue and getting things to change.

  • SiliconAddict

    Dave,

    You might want to look up the term collusion sometime. Even if MS, Apple, and RIM aren't directly doing so the colab buy of patents has one and only one use right now.
    Its a nuke targeted at Google's OEM's. Because MS/Apple aren't going after Google, because THEY don't have the deep pockets to defend against this. And frankly have no patent ammo to use against anyone. As such they are trying desperately to get patents and failing time and again. I swear it seems like a game of musical chairs where Google seems to always be the one left standing.
    You go after a dozen OEM's at a time and settle, guess who looks like the idiot and can't do anything other then sit on their hands because they aren't the ones being targeted.

    By themselves Google doesn't sweat MS or Apple or anyone else. Even though BOTH those companies have greater cash assets to throw around. In point of fact Apple and MS could easily outbid Google on pretty much anything. (which makes your original "valuable brand" moot. If they can't spend that money on something its pointless eh?)
    But when you are surrounded, and your only defense is a popgun and they have a howitzer. You are going to take it personally. Were tweets the best way of handling this? Not so much. It makes Google look petty.
    However yah know. You NEVER saw this kinda of BS in the video game console wars. It was each company (Nintendo/Sega/Sony/3DO/Atari) for themselves. they are playing a different type of business here. And frankly Google has every right to be pissed. you listed off each way Google can use to defend themselves.
    Another thing you might look up: death by a thousand cuts. No one single attack is going to kill Google. But when you are having companies like Oracle looks at billions in damage. (Now I think ordered into the millions now.) If any one of these lawsuits stick or a couple stick, Google is going to start hurting.
    Does MS and Apple deal with similar issues? Sure....and they also have a patent portfolio then can counter with, they have legal teams that dwarf Google's, and frankly a generation of dealing with this crap. You need to understand when it comes right down to it. Google IS the new kid here. How old is MS? How old is Apple. How old is RIM? Apple and MS are old hat at getting the crap sued out of them. Google? I'd guess this REALLY started in the last 6-8 years.
    All that said. Complaining isn't going to solve anything other then make you look like an idiot. Put on your bigboy pants and start fighting dirty if needed Google.

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