Google’s mostly ill-conceived patent screed from yesterday has opened the floodgates of discussion about Google’s (Android’s) vulnerability to third party patents owned by Microsoft, Oracle and Apple. Among the throng of comments and opinions about the episode are a few Google sympathizers, such as Forbes blogger Tim Lee who believes Google should advocate for the elimination of software patents:
Unfortunately, the modest procedural changes being considered in the America Invents Act won’t come close to preventing the kind of abusive litigation that’s now plaguing Android. So Google should consider going further and endorse software patent abolition. Obviously, I’d like them to do so because I think it’s the right policy on the merits. But it would also be a savvy business move.
But there’s a larger group of critics and detractors who call out Google for effectively being hypocritical — John Gruber for example:
So if Google had acquired the rights to these patents, that would have been OK. 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?
Both positions are right; patent law is in need of reform — and perhaps radical reform — to prevent abuse. But Google is also being opportunistic and inconsistent in its positions, which I suppose is to be expected of corporations.
Specifically Google points (in part) to the Novell patent portfolio to support its inflammatory claim of “a hostile, organized campaign” against the company by rivals. However, Microsoft General Counsel Brad Smith contradicts the implied assertion that Microsoft sought the Novell patents to keep them out of Google’s hands.
He earlier tweeted that Microsoft tried to cooperate and jointly bid with Google for the Novell patents, which Google declined to do:
Further evidence of what Smith said came in the form of another tweet from Microsoft’s Frank Shaw (first pointed out by TechCrunch), which included a polite email exchange between Google general counsel Kent Walker and Microsoft counsel Smith in which Walker said that Google didn’t want to bid with Microsoft for Novell’s patents but was “open to discussing other similar opportunities in the future”:
What looked like an opportunity for Google to present itself as “the good guy” and point to others’ apparent “anti-competitive” behavior — diverting attention from the various investigations against Mountain View — has backfired and turned into a public relations blunder, especially given the Smith and Shaw tweets above.
To save face and rise above the “he said/she said” noise Google should use this episode, as Forbes’ Lee suggests, as an opportunity to publicly advocate for significant but thoughtful patent reform.
Postscript: Below is Google’s update of its original post responding to the Smith and Shaw statements:
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.
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