Google, Microsoft Fire New Volleys in Patent Flame War

Google and Microsoft continue their patent squabble, with Google claiming conspiracy to keep Android down and Microsoft alleging Google wants to keep patents from others to protect Android.

Google (NASDAQ:GOOG) responded to Microsoft's (NASDAQ:MSFT) insinuations that Google didn't participate in a bid for Novell patents because it wouldn't help it protect Android, claiming Microsoft offered a "false gotcha."

Google Chief Legal Officer and Senior Vice President David Drummond implicated Microsoft, Apple (NASDAQ:AAPL) and Oracle (NASDAQ:ORCL) in a broad patent conspiracy with an incendiary blog post Aug. 3.

Drummond accused Microsoft and Apple of setting up patent consortiums to seize control of Novell and Nortel Networks patents. The companies colluded to keep patents away from Google so that they could attack Android, which has a 40 percent U.S. market share (comScore), and 50 percent worldwide (Canalys), he said.

Mere hours after Drummond's post published, Microsoft legal eagle Brad Smith and public relations head Frank X Shaw went on the offensive against Google via Twitter, painting Google's protestations that it is being shut out of patent acquisitions -- patents it has deemed "dubious" -- as a case of a boy crying wolf.

Shaw even shared this email, in which Google counsel Kent Walker politely declined Smith's offer to join in the bidding for Novell patents back in October 2010.

Drummond said Google turned down Microsoft's offer to jointly acquire Novell patents because Microsoft's objective has been to keep patents from Google and Android device makers 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,"Drummond wrote in an update to his post August 4.

"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."

The U.S. Department of Justice eventually required Microsoft to sell the patents it bought and ordered that the group, which includes Microsoft, Oracle, Apple and EMC, cede a license to the open-source 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," Drummond concluded.

Shaw returned to Twitter to fire back at Drummond Aug. 4: "We offered Google the opportunity to bid with us to buy the Novell patents; they said no. Why? Because they wanted to buy something that they could use to assert against someone else. So partnering with others & reducing patent liability across the industry is not something they wanted to help do."

Intellectual property expert Florian Mueller said he assumed Google, which with about 2,000 patents, is extremely patent deficient and therefore vulnerable in this litigious high-tech climate, would take the position that he did. Yet Mueller found it contrived given the circumstances.

"I take issue with his repeated use of the verb 'to defend' when he means what I would call "to fight fire with fire," Mueller told eWEEK. "Just imagine what it would have meant if Novell's Linux-related and other patents or Nortel's LTE standard patents had become strategic ammunition in Google's hands. Android might have had a benefit from that, but the mess would have exacerbated."

Muller also questioned why Google, which has alleged the patents in question are bogus, wouldn't use some of nearly $40 billion to squash those patents in court, "especially with the help of Quinn Emanuel's patent litigation team, which is one of the best (if not the best) in the entire United States?"