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:
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.
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.