28
Mar
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Google has announced a new initiative today that might, if we're lucky, slowly lead to some meaningful changes in how patent litigation is approached. Or, alternatively, make it easier to highlight the jerks who are ruining it for everyone. The Open Patent Non-Assertion (OPN) Pledge gives would-be inventors a pool of patents that Google promises to never sue anyone over, "unless first attacked." That last part is where eyebrows go up, though.

First, some context: there are 10 patents in the mix, which already isn't a lot. The company says more will be added over time. For these ten patents, Google is ensuring that any company, group, or developer working on open source software may use the technology without worry of being sued by the search giant. Unless that company attempts to attack first.

Of course that "attacks first" clause is where things get interesting. According to the official write-up here, Google reserves the right to terminate the promise if a company that utilizes any of the pledged patents (again, for free or open source software) sues Google over any of its products or services.

Because our Pledge is a promise not to assert certain Google patents without requiring any payment from a Pledge Recipient, we think it is only fair that we condition the Pledge upon the Pledge Recipient (and its affiliates) not asserting or profiting from the assertion of patents against Google, its affiliates, or its products or services. Accordingly, Google reserves the right to terminate the Pledge, to the extent Google deems necessary to protect itself, its affiliates, or its products and services (“Defensive Termination”) with respect to any Pledge Recipient (or affiliate) who files a lawsuit or other legal proceeding for patent infringement or who has a direct financial interest in such lawsuit or other legal proceeding (an “Asserting Party”) against Google or any entity controlled by Google or against any third party based in whole or in part on any product or service developed by or on behalf of Google or any entity controlled by Google.

In other words, Google wants immunity from being sued for any patent if a company or developer uses some of the IP that it has offered. Now, it's a little difficult to say for sure how this would play out in reality, but the way this document is worded, Google could, hypothetically, allow a for-profit company to use its patents for open source use, but rescind that offer if it sues Google over a patent on unrelated closed-source software.

That's just part of the problem, though. As FOSS Patents points out, the 10 patents that Google has offered is downright paltry. In 2005, IBM and Sun Microsystems, for example, collectively offered a couple thousand patents under a similar deal. In fact, in 2011, Google gave 9 patents to HTC just to sue Apple. While the search company has said more will be coming, it needs to be a lot more if it's going to have any substantial impact on the patent field.

Still, it's a little unclear as to whether this whole deal is strictly a good thing. On the one hand, it can certainly help a small development team or company to have a pool of patents that it knows it can use without fear of retaliation. Also, keep in mind that patents are not like copyrights. The nature of patents is that inventors have to show how they did it, so these companies don't just have the rights to the IP, they have the instruction manual, too.

On the other hand, they know that if they use those patents, and later discover that Google has copied something else they've done, they can't sue or risk Google returning fire over a (potentially) critical part of their business.

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Now, that being said, it's very much unclear if the situation would ever play out this way. After all, the key beneficiaries of this type of open patent pledge are going to be smaller companies and independent devs. A company like Samsung, for example, doesn't need to rely on free IP to get by. It can either license patents, or even shell out a billion (ish) bucks in lawsuits if it uses something it didn't have permission to. And patent trolls really won't care if they're using protected IP or not so long as they can win the legal battle and walk away with some damages.

While in principle it sounds iffy, in practice it's likely just a hedge so Google can still countersue, say, Microsoft if it ends up in a legal scuffle. In that situation, Google wouldn't want to give up the rights to some free patents that it gave to everyone, just because it tried to be nice to the FOSS community. Still, it does seem like somewhat shaky precedent.

All of the analysis of possibilities is moot, though, because as stated before, there are almost no patents here to really work with. Even Google stated that the 10 patents offered up so far already have open-source versions in active use. So, it's unclear what might be gained from this.

The idea is nice, but if Google wants this to be anything more than a lazy attempt to garner some feel-good press, it needs to put up a lot more patents.

Source: Google

Eric Ravenscraft
Eric is a snarky technophile with a taste for the unusual. When he's not obsessing about Android, you can usually find him obsessing about movies, psychology, or the perfect energy drink. Eric weaves his own special blend of snark, satire, and comedy into all his articles.

  • ddpacino

    Google won't go all in on this lol. This is like AOSP FRAND patents lol. They keep the great stuf (like Google's Appe Suite, Gmail Play Store, etc.) to themselves.

    • http://twitter.com/arghness Alex

      What you listed aren't patents (although they might include some patented ideas), they're applications, and I imagine you're talking about source code.

    • xspirits

      too much "lol".

      Plus: good thing they keep in their hands the stuff they created.

    • patapongirl

      I can't help it but to say...you have no idea what you are talking about right?

      • ddpacino

        Nope.

        Dell

    • http://www.facebook.com/benjamin.pavel Benjamin Pavel

      Do you even realize that you're mixing services with patents ?

  • Clayton Reeves

    The big thing about this is that it is Google's MapReduce patents. These are technologies that almost every major company has been using already.

    • http://www.facebook.com/profile.php?id=100000003999549 Mike Harris

      But as they said above, this isn't really for major companies.

      And keep in mind that they have to start somewhere. It may not be a huge initial offering, but it'll probably grow over time.

  • http://www.facebook.com/profile.php?id=100000003999549 Mike Harris

    I can understand Google's stance. It's like "we're going to share with you, so don't be a leecher and not share back." Of course, by 'share back' they mean they'll just take it without your consent, but it's not necessarily as bad as it sounds. Think of a roommate scenario. If we live together and I let you borrow from an assortment of movies, you better believe I'm going to assume I can borrow some of yours... even if you keep them in your room and leave the door locked... and I break in to borrow them while you're out and without your consent.

    OK, maybe it is as bad as it sounds.

    • MeCampbell30

      I HIGHY doubt google cares about the trivial amount of patents any small time developer might have access to. Google isn't exactly starved for ideas.

    • Joe_HTH

      LOL! Google is the biggest leecher of all. Their platforms are built on the patented technology of other companies.

  • Matt

    The real issue with this is that Hadoop is a huge open source project whose legal standing has been shaky, because Google has patents on it. This says, "we publicly pledge that we will not sue you for using Hadoop unless you sue us first." And they're setting up a framework for themselves so that if they want to do it for other technologies too, they can do it easily.

  • Freak4Dell

    While I agree that this, in the current form, won't change the patent field that much, at least it's something. I think it's totally fair for Google to put those conditions forth, too. After all, they're not forcing anyone to do anything. Before, companies had two choices if they wanted to use these patents: 1) License the patents, or 2) think of a new way to do it. Now they have the additional choice of just using the patented way as long as they don't start any trouble later on. If they don't like the conditions, they can still use one of the other options (although I'm betting that Google would "strongly encourage" them to agree to the conditions instead of licensing the patents). Google is basically giving others a freebie with some very clever protection for themselves built in. I love it.

  • kim laplace

    it's a good start,
    at least in a world where patent wars silliness are everywhere, it's a good start nonetheless.

    I'm excited to see how this will turn out.

  • http://twitter.com/s99nj S. Ali

    Lip Service.

  • QwietStorm

    lol I agree not to shoot you UNLESS YOU STAB ME FIRST!

  • http://www.facebook.com/radmoose Rad Moose

    Google is saying 'Here are 10 patents that we will not enforce as long as we have access to all of the patents of any company that utilizes these."

  • Joe_HTH

    This is nothing but PR bullshit. They've already sued Apple. They've tried to extort un-Godly sums of money from Microsoft over a few FRAND patents, and they've used those FRAND patents offensively, which is a no-no.

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