

 A Brief Explanation of Microsoft's Anti-Google Patent FUD - wglb
http://www.groklaw.net/article.php?story=20110805154137803

======
nextparadigms
_"If Google doesn't have enough money to buy up patents, who does? Twice it
has tried and been outbid, not by a single competitor but by a group of them
joining together. In fact, that's where, to me, the real antitrust issue
surfaces, that by joining together to squeeze Google out of two auctions,
Google's competitors appear to have been plotting against it in ways that
really must invite scrutiny, which, by all reports is now happening again."_

I think this is the main point of this story and this whole issue, and that's
what Google wanted to show us. If Google can't even get patents to protect
themselves, because all the others keep banding together and not letting them
win any auction, then something is very wrong here.

You may say, yeah but then why doesn't Android have its own patents? Well, I
don't think it would've been possible for them to get that many patents in
this short amount of time, and I don't think it would've been possible for
Apple either.

Look at Apple, they are winning with patents _not_ related to smartphones. If
Apple wasn't this 30 year old computer company, their patent chest would've
probably been close to zero, and a lot of these companies would've come after
them, too.

Here's a look at the _mobile_ patents everyone has. You can see Google is not
in top 10, but take a closer look - neither is Apple.

[http://www.businessweek.com/magazine/the-biggest-ip-war-
ches...](http://www.businessweek.com/magazine/the-biggest-ip-war-
chests-08042011-gfx.html)

So what would've happened if Apple didn't have any of their computers patents
from before, and they actually were a new smartphone company? They would've
probably gotten sued into oblivion as well, especially since they seem to make
a lot of money from iPhones. Their handful of mobile patents would've meant
nothing in the face of the mobile patent war chest of Nokia, Samsung,
Microsoft, HP(Palm patents) and Motorola.

You can't create something as complex as a smartphone and a smartphone OS
today, without infringing a _ton_ of patents. So if a new mobile company can
be crushed because others have more patents than them, then what does that say
about the patent system? It says the patent system does nothing to protect and
encourage innovation, but it lets the big incumbent companies crush the new
guys with their large patent war chests. It's bad enough when it's just one of
them, it's much worse when they all join together against that company.

If you can't build anything complex, without being a 10+ year old company (in
_that_ market) and not having thousands of patents - then something is very
wrong with the patent system that was supposed to help start-ups and
innovation. I think they all know this, but since they know they have the
upper hand with current broken system, they will fight to _maintain_ the
current system.

~~~
brudgers
> _"If Google can't even get patents to protect themselves, because all the
> others keep banding together and not letting them win any auction, then
> something is very wrong here."_

There may be more than one thing wrong, and one of those things is Google may
not be appropriately organized to operate in some of the markets it has chosen
to enter - e.g. the mobile phone industry. Their corporate strategy for the
search and advertising services upon which the company was built is centered
around trade secrets - and that makes a lot of sense given the sausage factory
model upon which they have built those services.

Unfortunately for Google, telecommunications doesn't work that way and never
has - that's why Nortel had such a big patent portfolio and why Bell Labs did
things like patent Shockley's work on the transistor. This is why it takes
longer for more mature companies to bring competitive products to a new market
segment - e.g. HP felt it prudent to acquire WebOS before head to head
competition with the iPad and Microsoft's WP7 doesn't look and feel like iOS.

In a nutshell, Google's problem is that in the telecommunications industry,
they did not innovate through a traditional R&D process. Instead, they appear
to have rushed the development of Android without proper due diligence in
order to be first to market with (operational and technical merits of Android
aside) what could be called an "iPhone knockoff". Now that lack of due
diligence is coming back to bite them.

<speculation>Could it be that senior Google leadership's fascination with the
Sidekick which led to Android lead developer Andy Rubin's being brought
onboard led to the damn the torpedoes approach to IP surrounding Android? And
could it be that the patents upon which Microsoft's license strategy for
Android is base came from their acquisition of Rubin's former startup, Danger,
which he left in order to found Android? </speculation>

~~~
extension
What should they have done differently? Wait 10 years until they amass their
own patent portfolio? Android could have been less similar to iPhone, but up
against tens of thousands of bogus patents, would that really make a
difference? Anything that was competitive would have provoked an attack.

Frankly, it _should_ be ok to enter the market the way Google did.

~~~
brudgers
Irrespective of should or shouldn't, it isn't. And Google knows it now, and
should have known it then. They could have licensed the relevant patents -
after all, that appears to be what Apple did in the case of Loadsys and the
reason they are not being sued, and it appears to be what Microsoft did with
portions of the Nortel portfolio which is why they were concerned enough to
participate in its purchase.

With Android Google stepped into a mature market for the first time and
appears to have committed rookie errors - it's not the stuff in the Nortel or
Novell portfolios which is generating income for Microsoft - and a lot of
Microsoft's patents were created through old fashioned in-house R&D - exactly
the sort of innovation which should be protected.

<cynical_speculation>It may have been in Google's interest to turn Andorid
into Open Source in October of 2008 due to the liability incurred when
Microsoft acquired Danger's patent portfolio earlier in the year. Particularly
in light of Google's antipatent corporate culture and Andy Rubin's role in
creating Google's phone software.</cynical_speculation>

~~~
nitrogen
_...a lot of Microsoft's patents were created through old fashioned in-house R
&D - exactly the sort of innovation which should be protected._

 _Only_ if that "innovation" is actually novel, non-obvious, specific, and
useful, and certainly not for 20 years (roughly 13 generations in tech years).

 _It may have been in Google's interest to turn Andorid into Open Source in
October of 2008 due to the liability incurred when Microsoft acquired Danger's
patent portfolio earlier in the year._

If Android was always based on the Linux kernel, then they probably had an
open source plan from the beginning.

Edit: _With Android Google stepped into a mature market for the first time and
appears to have committed rookie errors_

This sounds like code for "Google stepped into our territory and didn't pay
its protection money."

------
switch
It's interesting how people are choosing to first pick what company they want
to be right, and then bending things to suit their desired reality.

Why can't people just say - Here's a situation and a company that I think is
the Do'est No'est Evil'est company of all time is being a sore loser.

Google bid on the patents and it lost. It's a bit ridiculous to now claim some
sort of divine right to be above patent law.

Also, FYI, google has a patent on their doodles. It's the height of hypocrisy
to claim that patents for telecom technology aren't fair and at the same time
patent a set of doodles.

~~~
bandushrew
Im not choosing the company I want to be right, I am choosing the opinion.
_Any_ company that argues against software patents is on my side. _Any_
company that argues for them, or uses them offensively, is on the other side.

When Microsoft argued against patents, they were on my side. When they use
them against other companies, they are on the other side.

Honestly, I dont care a whit what the company is, software patents are bad and
if they want me on their side, they will say so, loudly.

~~~
mstepniowski
This time Microsoft was on your side, as they've banded with several other
companies in order to buy Novell (and Nortel) patents cheaply, making sure
that patent trolls won't acquire the patents and minimalising their effect on
the industry (assuming that the new patents would then be only used for
"defense", as there is no reason to think otherwise).

The plan would have worked, if not for Google which made the price of patents
skyrocket.

~~~
bandushrew
I dont really care much who owns those patents to be honest, I care about
those companies who consistently, loudly and vocally oppose software patents.

To me, this argument looks like: <some stuff I dont care about in the
slightest> Google: Software patents are bad and are going to be used against
us.

That puts me, in this fight, squarely on the side of google.

But I am not fussy, if Microsoft comes out again and vocally declaims the evil
of software patents, they can be on my side again as well.

What I _really_ want to see is large software companies consistently and
actively working against software patents in every direction, putting the
patents they control into a pool that everyone can join on the agreement that
they never sue anyone for patent infringement, and giving everyone in the pool
equal ownership of the patents in there. While also working to lobby for
overriding reform of the patent system.

 _that_ would be a good start, and I dont see anyone doing it at the moment.

So really, sod them all.

~~~
jeroen
_I care about those companies who consistently, loudly and vocally oppose
software patents._

That's not Google. They tried to play the game just like the others. The
protesting seems to have started after they lost.

~~~
lukeschlather
Google isn't extracting patent licensing fees from anyone, nor are they a part
of pools that do so like MPEG LA.

Until they do so, Google is playing the game honorably, because they have no
choice - they are not playing the game just like the others.

~~~
vammok
Just a novice posting...if Google isn't extracting patent licensing fees from
anyone, is it because it chooses to do so or is it because it wants to but
can't, owing to a lack of patents?

I don't know enough to take sides, but I do know that non-specific software
patents are 24-carat BS as 'defensive use' is super subjective. I just think
that Google could and should have stayed away from Nortel bidding, or at least
voiced concern _before_ losing out to a consortium. That ways, it could have
avoided the 'sore loser' argument entirely.

------
technoslut
This is a very odd article to say the least.

Why is it disturbing that Google is unable to buy these patents? These patents
were sold to the highest bidder and the bidders were approved by the gov't.

How are MS, Apple & Oracle unpatriotic in bidding against Google for patents?
Last time I checked Google, Apple & MS all have their cash in tax havens
overseas. That, to me, sounds unpatriotic.

Why are these three companies specifically to blame for the bogus patents that
are thrown out in court? This seems to put the blame squarely on the shoulders
of the USPTO for even validating them. There are also the claims that were
found valid in the courts. Are they bogus as well?

Has Apple or MS sued OHA members with these purchased patents? I realize the
situation with Oracle is far more in the gray but it seems Apple has sued with
patents they applied for and used in their products. Why should Google have
the benefit of purchasing patents to leverage against Apple & Microsoft's own
patents?

~~~
yobbobandana
Microsoft has previously been accused of "misusing patents to further an
anticompetitive scheme against Android". Here's a link to the relevant article
on groklaw:

<http://www.groklaw.net/article.php?story=20110427052238659>

Disregarding your comments on patriotism and the USPTO (which I don't fully
disagree with), the disturbing part about Google being unable to buy these
patents, is that they appear to have been actively collaborated against in the
auctions. Not being able to build a substantial patent portfolio denies them
the ability to countersue in response to frivolous patent threats against
Android, which I assume is a large part of why Google was willing to bid so
highly for them.

Personally the part of the recent auction I found most disturbing was that the
patents weren't sold to the highest bidder, they were sold to a conglomeration
of bidders, some of which had already tapped out. To make a parallel with an
art auction, it would be like half of the bidding floor banding together
simply to ensure that another promiment bidder _didn't_ get the piece.
Possibly a valid action, but possibly anticompetitive, depending on the
situation.

~~~
ashishgandhi
"To make a parallel with an art auction, it would be like half of the bidding
floor banding together simply to ensure that another promiment bidder didn't
get the piece."

Except that the "another prominent bidder" was invited to join the party but
the bidder refused. If groups were forming, they were forming. If Google did
not want to join, they did not want to join. But if they want to complain
about others forming groups when it's legal - I'm not sure if one should have
sympathy for them.

~~~
mayanksinghal
(The argument that I am going to make, has been posted a lot of times before -
we need a way to merge threads)

1\. You are confusing deals - Novell and Nortel

2\. Actually it was (Google + Intel) vs Apple et al.

3\. There is no sense - no profit for Google to be a part of bidding group
that consists of competitors who are suing Google for IP infringement.
Firstly, the deals were not discussed, so we can only guess what MS et al.
were offering. So if I were to make a guess, MS et al. would have offered
shared usage of Novell patents with (zero or minimal) licensing of IPs with
guarantee of no lawsuits. Google would have required these patents, not
because it wanted to build products relating to them but because they can be
used to defend against other companies when they bring lawsuits on Google.
These other companies are MS et al. So being in the same bidding group G to
bid for patent set X as the company that wants to (counter-)sue other
companies in G using the IPs in X would be illegal because of the contract.
Hence, a useless deal for Google.

~~~
ashishgandhi
The scenario described in point number three is possible, it is also possible
that MS and Google could have negotiated a cross-licencing deal of sorts to
help their Bing and Android businesses. So we just don't know.

~~~
mayanksinghal
But there still are Appl et al. involved in the group. Additionally, I don't
believe that such a deal would benefit MS. They are earning more from Android
than Windows Mobile!

------
Terretta
Tremendous amount of deliberate misdirection in this piece. Some of it isn't
even masked. "What does Google's note mean? Let's let them translate using
their after-the-fact interpretation tailored for this current fight..." How
does that clarify anything?

And this gem:

 _And if you look at the mobile litigation going on as we speak, ask yourself:
who is suing and who is being sued? Does it look coordinated to you? It does
to me. It's always the same direction. Android gets sued. Sometimes it's the
vendors. Sometimes it's Google._

So either the author is completely unaware of the field being written about,
or the author is lying.

~~~
cageface
How is the second claim inaccurate? I'm aware of a few retaliatory counter-
suits but none that were initiated from the Android side.

~~~
Terretta
Vivid picture of this so called "coordination" showing that claim is complete
B.S.:

<http://www.flickr.com/photos/floorsixtyfour/5061246255/>

So "does it look coordinated to you?" On the contrary, it's chaos, but Google
wanted in, really badly. Well, this isn't their daddy's monopoly, and it's not
all about them.

(Also, in general, the newcomer doesn't assert patents against the old guard.
It's not a conspiracy -- Google just got here last.)

Google, to fix this, stop whining about a few players amassing more toys at 5x
the estimate when you only bid 4x the estimate, and do something about
disarming the weapons instead.

Don't like "bogus" patents because they were invented before you thought of
making a phone and you didn't get them for pi? Boo hoo.

Don't like patents at all? Great, let's go there.

~~~
drivebyacct2
The existence of hundreds of suits doesn't do anything against the claim that
Android and Google are being effectively picked on by Apple and Microsoft and
when they go in together to keep Google/Android from having leverage against
such suits... Or do you still feel that my description is a
mischaracterization of the events surrounding the sale of both the Novell and
Nortel patents?

How many arrows are coming out of Google's bubble on that diagram?

~~~
Terretta
> _"when they go in together to keep Google"_

Don't see any arrows out of Microsoft or Apple at Google either. Google's
failed bid doesn't make them the center of the universe.

Apple learned a couple years earlier it's an arms race after they got hit from
all sides. Lucky for them, they'd been doing handheld R&D for over two
decades, and were able to fight back.

Despite its investment in Intellectual Ventures, Google hasn't stockpiled
enough relevant ammo yet. They were trying hard to get some, to play the cold
war detente licensing game the way the others were playing it long before
Google or even Apple showed up, but 4x didn't beat 5x, and now they're trying
PR as a tactic.

And yes, the existence of 50 arrows pointing at _not_ Google compared to 3 at
Google (from companies not shipping phones) _does_ do something against the
claim Google is being picked on.

~~~
drivebyacct2
>Don't see any arrows out of Microsoft or Apple at Google either.

And that's a fault of the image. On the other hand, I'm not aware of any suits
levied by Google in relation to Android.

>Despite its investment in Intellectual Ventures, Google hasn't stockpiled
enough relevant ammo yet. They were trying hard to get some, to play the cold
war detente licensing game the way the others were playing it long before
Google or even Apple showed up, but 4x didn't beat 5x, and now they're trying
PR as a tactic.

I don't understand. If you grant that Google was trying to buy the patents
defensively, then what is your problem with their "PR as a tactic", it fits
perfectly in with their story. They wanted to buy the patents so that they
would have leverage to protect themselves and HTC/Samsung/Moto who have been
sued and are paying out to Apple and Microsoft. It didn't work so their only
remaining stance is to argue that the system is wrong. The fact that they
tried to excel or protect their interests, considering that their partners are
_very currently and very really having to pay out to Microsoft_ , doesn't seem
to damage their stance in my opinion. The act of defensively buying patents
and calling the system broken are not mutually exclusive.

>And yes, the existence of 50 arrows pointing at not Google compared to 3 at
Google (from companies not shipping phones) does do something against the
claim Google is being picked on.

I've not seen anyone claiming that "everyone who's not Google" is teaming up
against Google. But I and others are suggesting that Apple and Microsoft
collaborating to buy patents that would prevent HTC from having to give
Microsoft $5 for every handset sold... is at least cause for suspicion of
collusion.

~~~
Terretta
Look at that picture again. If you're in the middle of that, you try to spend
the least amount possible that results in detente. No conspiracy needed.

------
tzs
How does she conclude Google tried to buy the Novell patents? I don't see that
stated or implied in anything Google or Microsoft said.

If Google is so pure and innocent, why do they invest in Intellectual
Ventures?

~~~
beernutz
In response, Brad Smith, Microsoft’s general counsel tweeted, "Google says we
bought NOVELL patents to keep them from Google. Really? We asked them to bid
jointly with us. They said no."

~~~
drivebyacct2
That's mentioned in the article and has been posted several times. Even that
tweet doesn't imply that Google actively vied for the patents, though, in my
opinion, that's a pretty fair assumption.

This thread features a wider breadth of discussion about that particular
tweet, in case you or anyone else might have missed it:
<http://news.ycombinator.com/item?id=2844722>

------
incosta
So Apple and MS are anticompetitive?

Isn't Google being anticompetitive by effectively dumping the Android phones
to the world markets (and then boasting how many copies are activated each
day?) Google has played this game of offering "free" services and this worked
for them well in terms of crushing smaller companies who just did not have
resources to fire back. But this is not the case with big guys like Apple and
Microsoft. Google was very naive thinking it will flood the market with cheap
Android phones and Apple will just sit and watch. Google can expect to make
money off ads, but Apple cannot. So they use patents to make it more difficult
for Google to do what they want. Very simple.

In other industries there are anti-dumping laws and regulations, because
dumping is considered an illegal way to kill competition. Google has been
doing this for years, because their primary source of revenue is ads. To be
honest, I don't have much sympathy to Google, not in this case.

~~~
shriphani
Your problem as a consumer is that someone's actively innovating 50% of the
cellphone experience for free (hardware is not in Google's control)?

I am really confused how giving something for free went from being nice to
"anticompetitive jerk".

Are you saying that you will reject a product because it is free?

edit : wrong punctuation used

~~~
incosta
Oh so Google is offering stuff free because it's being nice! Very funny. I
guess MS was also then being nice by offering IE for free to everyone? They
did it because they were nice, not because they wanted to have everyone who
offered non-free alternatives marginalized and killed, right?

~~~
shriphani
As a consumer I don't mind free stuff. Engaging legislation so you can keep
charging for something that is free sounds wrong to me (from a consumer
perspective).

I mean no one complains about WalMart right ? It is convenient and people have
to muster some other kinds of emotion to be against it (patriotism, low wages
and exploitation etc).

~~~
incosta
I am glad you brought Walmart as an example. We soon will have a country full
of Walmarts where local stores have no place, which looks the same everywhere
you go. Walmart after Walmart. It's all cheap there!

Similarly we just may soon have a country when Google is the only software
company to work for. Because everyone believes all software should be free and
ad-based, and because Google is dominating the ads business.

------
ddlatham
Exactly. What good are patents for deterring suits if those suing you have a
license to them too?

------
brudgers
> _"It's always the same direction. Android gets sued. Sometimes it's the
> vendors. Sometimes it's Google."_

It could be a vast secret illegal conspiracy against Google. It could also be
that Android infringed on a lot of IP during the damn the torpedoes rush to be
the first iPhone competitor. Analysis using Occam's razor and an understanding
of human nature is left as an exercise for the reader.

~~~
Pewpewarrows
That's entirely possible. Then again, I can't imagine a single non-trivial
piece of software that doesn't end up stepping on IP toes left and right. If
you take a look at some of the overly broad patents many companies have been
granted over the years, you can't help but violate them, even when writing
trivial algorithms.

------
mavin
Great article. Some of the better analysis I've read so far

------
ditojim
thanks for brining clarity to this situation. why does microsoft consistently
belittle the general public by making misleading statements? they are just
dishonest people who bash others as a way of furthering their own products. i
have grown increasingly anti-microsoft as a result, to the point where i
refuse to buy their software or products, and discourage anyone else from
doing so.

------
gord
Where would we be if Tim Berners Lee had patented http ?

Google need to win the 'make patents irrelevant' battle not the 'my bullshit
patent portfolio is larger than your bullshit patent portfolio' battle.

