Google comes out swinging versus Microsoft, Apple and other holders of patents on which Android allegedly infringes. The company is using the broken patent system to mask its transgressions, according to John Gruber.
It is easy to
drown in the ocean of rhetoric Google's (NASDAQ:GOOG) chief legal eagle poured out
Aug. 3 in a blog post describing how the high-tech world is conspiring to
suppress the search giant's Android operating system.
"Android's
success has yielded something else: a hostile, organized campaign against
Android by Microsoft (NASDAQ:MSFT), Oracle (NASDAQ:ORCL), Apple (NASDAQ:AAPL)
and other companies, waged through bogus patents,"
Google Chief Legal Officer and Senior Vice President
David Drummond wrote in a blog post.
Drummond
pointed to how Microsoft, Apple and others banded together to buy patents from
Novell and Nortel; how Microsoft wants $15 for every Android handset Samsung
makes; and, of course, the swath of Android-focused lawsuits versus Samsung,
HTC, Motorola, and Barnes & Noble.
Yet something
smells fishy here, beyond the fact that
Google politely declined to participate in the
Novell patent purchase with Microsoft.
Drummond
dismissed the patents as dubious, claiming Microsoft, Apple and others are
merely looking to leverage them to impose a tax against Google that makes
Android devices more expensive for consumers.
Daring Fireball
blog editor John Gruber cut through the persecution talk with a cogent position
about how Google has no right to complain about patents it doesn't own.
"So if
Google had acquired the rights to these patents, that would have been OK,"
Gruber wrote. "But when others acquired
them, it's a "hostile, organized campaign. It's OK for Google to undermine
Microsoft's for-pay OS licensing business by giving Android away for free, but
it's not OK for Microsoft to undermine Google's attempts to give away for free
an OS that violates patents belonging to Microsoft?"
Gruber also
highlighted hypocrisy on the part of Google. Apple, Microsoft and others outbid
Google for Nortel Networks patents,
plunking down $4.5 billion after Google's bid topped out at
over $3 billion.
While Drummond
said the Rockstar Bidco consortium that pulled this move was "escalating
the cost of patents way beyond what they're really worth," Gruber
questioned why "Google was willing to pay anything for them, let alone pi [3.14]
billion dollars."
Gruber also
accused Google of using the dysfunctional U.S. patent system as a prop for its
Android defense.
"They're
effectively arguing against the idea of the patent system itself, simply
because Android violates a bunch of patents held by Google's competitors. It's
not "patents" that are attacking Android. It's competing companies
whose patents Google has violated - and whose business Android undermines-who
are attacking Android."
What Gruber
really spotlighted here was a classic legal tactic of misdirection, using
rhetoric and twisting the truth to suit the defense's needs. The prosecuting
litigants can do this, too, but may not need to with the right patents on their
side.
It doesn't
matter whether those patents are silly, absurd or dubious so long as they're
recognized by the United States Patent and Trademark Organization.
Gruber wasn't
the only one struck incredulous by Google's daring defense.
Considering
that Drummond and other Google executives have openly complained about the
broken patent system, Forbes columnist Timothy B. Lee was surprised patent
reform wasn't mentioned in the second part of Drummond's Android defense:
"We're
determined to preserve Android as a competitive choice for consumers, by
stopping those who are trying to strangle it. We're looking intensely at a
number of ways to do that. We're encouraged that the Department of Justice
forced the group I mentioned earlier to license the former Novell patents on
fair terms, and that it's looking into whether Microsoft and Apple acquired the
Nortel patents for anti-competitive means. We're also looking at other ways to
reduce the anti-competitive threats against Android by strengthening our own
patent portfolio."
Lee noted: "Congress is currently working on
a patent overhaul called the America Invents Act. Google is one of the world's
largest and most prominent victims of our innovation-taxing patent system, so
lobbying for better patent laws seems like an obvious way to fight back."
He added that
Google should endorse software patent abolition to strengthen its hand in
settlement negotiations:
"Right
now, Google and its licensees are facing accusations that they've infringed
hundreds of patents. Fighting those patents one at time is an impossible task;
even if 90 percent of them are "bogus" (which they probably are), the
non-bogus 10 percent will be more than enough for companies like Microsoft and
Oracle to extract billions of dollars in royalties.
By pushing for
patent reform, Google could put Microsoft, Apple and others on their heels, Lee
argued. These litigants could strike quick settlements out of fear that their
entire patent portfolios could be invalidated before they could profit from
Google's arrogant missteps.
Of course, by
the time Google gets around to do this and see patent reform through, the
current cases may already be decided-and not in Google's favor.
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