Don’t Just Whine, Google: Oppose Software Patents!

It is easy to drown in the ocean of rhetoric Google’s chief legal eagle poured out on 3 August  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, Oracle, Apple and other companies, waged through bogus patents,” Google Chief Legal Officer and Senior Vice President David Drummond wrote.

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.

Something smells fishy here

Yet something smells fishy here. It is not just the fact that Google was actually invited to join the supposedly-competitive bid for Novell patents , and politely declined.

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 post 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 US patent system as a prop for its Android defence.

“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 defence’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 recognised by the United States Patent and Trademark Organization.

Gruber wasn’t the only one struck incredulous by Google’s daring defence.

Time for Google to oppose software patents?

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 defence:

“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 doing this and seeing patent reform through, the current cases may already be decided—and not in Google’s favor.