It’s been a very entertaining 24 hours if you follow tech news, with the legal head honchos of Google and Microsoft getting into a very public spat over the sale of $4.5 billion worth of patents from defunct Nortel to a consortium lead by Apple and Microsoft.
First, Google SVP and CLO David Drummond went public on the Google blog with complaints of how the Nortel patents were “bogus” and only purchased as an anti-competitive play by Apple and Microsoft to try and kill the Android ecosystem by suing Android manufacturers. The blog post was initially (remember, the internet moves pretty fast) hailed as a potential opening salvo in a war against software patents by Google, and was generally praised.
Soon, though, the tide turned in the war for the media. Microsoft’s Brad Smith replied by tweeting this, which I’m sure is his most re-tweeted tweet ever:
Google says we bought Novell patents to keep them from Google. Really? We asked them to bid jointly with us. They said no
Sounds beautiful, but as we will get to in a second, it’s a red herring from the real explanation. Microsoft’s apparently a collaborative place, and realizing this was a media play by Google (and a poor one), Microsoft’s Frank Shaw jumped in, posting an email from Kent Walker, another member of Google’s legal team, to Brad Smith:
Brad –
Sorry for the delay in getting back to you — I came down with a 24-hour bug on the way back from San Antonio. After talking with people here, it sounds as though for various reasons a joint bid wouldn’t be advisable for us on this one. But I appreciate your flagging it, and we’re open to discussing other similar opportunities in the future.
I hope the rest of your travels go well, and I look forward to seeing you again soon.
– Kent
Ouch, right? How embarrassing!
Well, actually, not really. As those familiar with patent licensing would tell you, most patent licenses and especially consortiums like this come with an agreement that the members won’t interfere with the activities of other members as it pertains to the enforcement of the patents. You also usually agree not to challenge the validity of a patent you own/license in one of these arrangements. Obviously, Google would have been better served if they had anticipated Microsoft’s response, because Microsoft seems to be getting the last laugh in this one, but in reality Google would have paid lots of money to join the consortium, then been unable to protect their interests (defending the Android manufacturers from attack) anyway. So for Google, no consortium with Apple or Microsoft would have been agreeable, the only option was to own the Nortel patents outright and hide them in a closet, else they would have spent money to be contractually prevented from defending the manufacturers.
Google actually may have learned this mistake from Apple, or, actually, Google may have already made the mistake once before. Apple is currently trying to intervene in a series of suits against Apple app developers launched by patent troll Lodsys, but as Florian Mueller has noted multiple times on his blog, Apple’s hands are probably tied because they have a license to the same patent through Intellectual Ventures. Apple’s license probably precludes them from challenging the validity of the patent itself – thus they are stuck with only one strategic option, an unappealing and likely hopeless claim that the license extends to the developers. Google might be in the same position, assuming they have a similar license from Intellectual Ventures, and perhaps this explains their reticence to enter the battle, as they have thus far been quiet as it comes to the Lodsys suits against apps on Android.
So I feel for Google’s legal squad right now – their developers are being sued by trolls over silly patents, and their hands are tied because of a patent license, while their manufacturers are getting sued by Apple over silly patents (with more ammunition on the way if the Nortel deal isn’t blocked or force-licensed by the DOJ), and Google was hopeless to stop that as well. Google’s maybe in the best position ever to make a strong case against software patents right now, with their truly innovative and consumer-approved Android platform being taxed by patents. With a conveniently timed article today on Huffington Post (tl:dr version) showing how patent reform is mostly a Congressional lobbying game, maybe Google can step up and be the hero we need.
danielmarkmiller.net 