
Dear Google, Commit Your Broad Patents to a Defensive License - DiabloD3
https://www.eff.org/deeplinks/2013/10/dear-google-commit-your-broad-patents-defensive-license
======
cromwellian
One of the issues is how you define "defensive" purposes. If you are locked in
an ecosystem battle with opponents who are fighting on multiple fronts over
years (Microsoft shaking down Android vendors, Apple suing to ban and restrict
competition), then you yourself may never be sued directly, but your interests
are nevertheless, still being attacked indirectly. It's like a Cold War where
your client states are fighting it out against other superpowers.

Thus, is it "offensive" if Apple sues one of your customers over a stupid
patent on phone number extraction via regular expressions, or Microsoft sues
over FAT32, and you retaliate by suing them because they built a bill-
splitting app into their product? Or must they launch a nuclear missile
directly at your capital before you're considered justified in a counter-
offensive?

The hope I think of asserting these kinds of patents is that mutually assured
destruction results in detente. You build up a nuclear arsenal so that it
becomes unthinkable by your opponent to attack, and this is undermined if you
hold yourself to some kind of pledge never to use them, or never to use them
unless your capital is bombed directly.

What the EFF is asking for is a nuclear non-proliferation treaty and test ban,
but they are asking the weaker player (who has fewer weapons) to give up their
weapons and give up making, and not the superpowers.

~~~
throwawaykf02
_> Microsoft shaking down Android vendors_

Please can we stop saying this? I can write a whole essay on how licensing
patents is the norm in tech industries, and how Microsoft (and Apple) are
using patents exactly as they were meant to be, and so on.

But since you're a Google employee (IIRC), I'll just point out that it was
_Google_ that was actually _convicted and made to pay 14 million_ for doing
what you are accusing Microsoft of doing.

~~~
magicalist
This Ars Technica article[1] lists the five patents they were demanding
ridiculously high license fees for. Please, by all means, explain how
demanding the same fee they would for licensing Windows Phone itself[2] for
such ridiculously terrible patents is exactly how the patent system is
supposed to work.

Patent cross licensing is incredibly common in the tech world, but this was
not an example of that. This was Microsoft taking the playbook from the RIAA
and the porn industry and betting they can get a large chunk of money out of
companies by setting the license fee at the perfect level so that it was safer
to settle than to countersue.

[1] [http://arstechnica.com/tech-policy/2011/03/long-battle-
likel...](http://arstechnica.com/tech-policy/2011/03/long-battle-likely-in-
microsofts-newest-patent-infringement-suit/)

[2] [http://arstechnica.com/tech-policy/2011/03/long-battle-
likel...](http://arstechnica.com/tech-policy/2011/03/long-battle-likely-in-
microsofts-newest-patent-infringement-suit/)

edit: below, afsina provided an even more detailed look at the three patents
that became key to the barnes and noble ITC complaint:

[http://arstechnica.com/tech-policy/2012/02/the-three-
patents...](http://arstechnica.com/tech-policy/2012/02/the-three-patents-
microsoft-is-hammering-the-nook-withand-why-they-may-be-invalid/)

~~~
throwawaykf02
_> Please, by all means, explain how demanding the same fee they would for
licensing Windows Phone itself[2] for such ridiculously terrible patents is
exactly how the patent system is supposed to work._

1\. Those are just 5 patents they asserted in that one lawsuit. The portfolio
they actually license probably has hundreds and maybe even thousands in it.
They only asserted these 5 because a) it's practically impossible to sue over
more than a few patents, and b) they thought these were the likeliest to get
B&N on.

2\. I am not sure what the "ridiculously high license fees" were... Were they
ever even revealed? To my knowledge, the actual terms of any of their Android
deals is not known to this day, and the $10/phone figure is complete
speculation. This is true of almost any IP licensing deal by any company in
the world ever. These deals are typically closely guarded trade secrets. My
hunch is, MS is actually licensing for a lot less than $10/phone, and is
instead negotiating for a stronger commitment from manufacturer's on the
Windows Phone front.

3\. Patents give holders a right to sue others if they infringe. Infringers
can try to avoid lawsuits by negotiating a license. Or they can argue that
they don't infringe or the patent is invalid, which often (but not always)
ends up in court. That is how the patent system was designed to work.
Microsoft chose to use it by negotiating licenses for the most part. Apple
chose to not license and used their right to sue instead. Now one may complain
about the quality of the patents involved, but...

4\. ...On what basis did you judge those patents to be "terrible"? Really, I
am curious as to what you think the patent covers and why it's terrible. I ask
because the default for tech media or HN is that all patents are "terrible"
but when I drill down into it, most people are woefully uninformed about how
they work. It's actually quite difficult to truly evaluate the quality of a
patent. From a legal perspective, it requires reading not only the patent, but
the entire file wrapper including all the cited prior art, the office actions
and the applicant's responses. From a layman's perspective, judging the
novelty of something, especially if it's old, is difficult because it's very
difficult to envision the state of the art at the time of filing and
appreciate what is being claimed; things too easily appear obvious in
hindsight, and some of the patents on there are from _1994_!

~~~
magicalist
You didn't address the actual point of contention here. How is asserting these
patents in court, or using them to get an import ban via the ITC, an example
of how the patent system is supposed to work? They cow a company with patents
over things barely invented (B&N actually argued that they weren't invented at
all, at least not by Microsoft) that should have never had a patent issued for
them in the first place, and you argue that once they do agree to a patent
license they are getting to license totally awesome things?

"Hate the player not the game" is not an excuse when the charge was "Microsoft
shaking down Android vendors". The RIAA (and now the porn industry) was also
granted the right to sue and recover up to $150,000 per infringement of their
copyrighted works. Now, one might complain that the Copyright Act wasn't
written in a world where individual songs could constitute an infringement
act, nor did Congress intend the higher damages amount to apply to individuals
not engaged in a profit-making venture, but...

In any case, you sound reticent to start reading the patents. Here's a good
starting place: Barnes and Noble's response to Microsoft's ITC complaint:
[http://www.groklaw.net/pdf2/MSvB&Nanswer.pdf](http://www.groklaw.net/pdf2/MSvB&Nanswer.pdf)

Yes, the patents really are terrible.

~~~
throwawaykf02
_> How is asserting these patents in court, or using them to get an import ban
via the ITC, an example of how the patent system is supposed to work _

I thought I did so in point 3.

(Edit: removed bit about copyright because it could quickly derail this thread
into a copyright/piracy thread.)

 _>... (B&N actually argued that they weren't invented at all, at least not by
Microsoft) that should have never had a patent issued for them in the first
place,...

> Here's a good starting place: Barnes and Noble's response to Microsoft's ITC
> complaint:
> [http://www.groklaw.net/pdf2/MSvB&Nanswer.pdf](http://www.groklaw.net/pdf2/MSvB&Nanswer.pdf)

> Yes, the patents really are terrible._

Really? You're going to take the defendant's word to show that the "patents
really are terrible"? I'd like you to find a single defendant in a patent
lawsuit who didn't think the asserted patents were terrible.

 _> ... you argue that once they do agree to a patent license they are getting
to license totally awesome things?_

No, they'll just get a license to do things covered by the patents that they
were allegedly doing anyway. Said things may or may not be totally awesome.
And if they're not very useful, why do them in the first place?

 _> In any case, you sound reticent to start reading the patents._

No, I actually did go and read the pertinent parts of the patents linked
above. They're actually better than the really terrible ones I've seen from
that era. But I cannot make an off-hand judgement on their overall quality
because that would require reading the patents, and the file-wrapper, and the
prior art, and...

But, wait. Did _you_ read the patents? And the file-wrapper? And the prior
art? Or are you just accepting an opinion given by hilariously biased sources?

------
anon1385
Google use patents offensively when it suits them. They are not on our side.

[http://europa.eu/rapid/press-
release_IP-13-406_en.htm](http://europa.eu/rapid/press-
release_IP-13-406_en.htm)

 _The European Commission has informed Motorola Mobility of its preliminary
view that the company 's seeking and enforcing of an injunction against Apple
in Germany on the basis of its mobile phone standard-essential patents
("SEPs") amounts to an abuse of a dominant position prohibited by EU antitrust
rules_

~~~
pavanky
> The Commission opened the investigation in April 2012.

While the process of buying out had begun at this point, it wasn't finalized
until May 2012. I am not sure how much "Google" had to do with this decision.

~~~
bsullivan01
Nice one, others did it, not Google.

Too bad this notice was published on 6 May 2013. Surely Google had time to
stop whatever Motorola was doing until May 2013 but decided not to, even if
Google had no hand in pushing Motorola to do this.

~~~
cromwellian
Motorola, and HTC to some extent, are companies that were on their last legs,
almost bankrupt, and the world's most profitable tech company, with half the
market, and $150 billion in cash, is engaged in offensive lawsuits against
them trying to enact import bans. Who is the bully here? It's like a
billionaire punching a street bum in the face, and then whining when the bum
fights back ungentlemanly. The two biggest bullies, Apple and Microsoft, have
cross-licensing agreements and a behavior of ganging up on Android.

I find it absurd that FRAND patents are practically valueless, but "obvious"
patents, which are effectively standards essential because wide applicability,
are worth billions and import bans. Apple sued HTC over a patent which is a
college algorithms homework question, the first strike on the Android was
launched by Apple in 2010. I would view all suits against Apple since then,
not as trolling, but as an attempt to negotiate a cross-license by forcing
them to the table.

~~~
bsullivan01
_It 's like a billionaire punching a street bum in the face, and then whining
when the bum fights back ungentlemanly._

Very touching, minus the fact that APPL was once almost bankrupt too and that
the iPhone, that everyone started copying, really made them that $150 Billion.
Care to tell us what Android looked before the iPhone? Oh, it looked like the
market leader of that time, Blackberry. [http://gizmodo.com/334909/google-
android-prototype-in-the-wi...](http://gizmodo.com/334909/google-android-
prototype-in-the-wild?tag=gadgetsandroidhardwareinthewild)

 _I find it absurd that FRAND patents are practically valueless_

No one forced them to make them FRAND patents. At least they get a cent here
or there from every phone on earth.

~~~
pavanky
They made good business decisions to make that money. That does not give them
the right to become ass holes and claim everything they did was original and
exclusive to them.

Everything is a copy of a copy of a copy. Some better than others, some
different, some identical. It is insane that this shit needs to be patented.

~~~
Alphasite_
You know, I can't even tell who you're talking about there, Motorola's FRAND
patents or Apple?

------
devx
How about Microsoft and Apple? Do they get a free pass from this, because
they're less likely to do it, so why even bother asking them?

I'm not defending Google, and I support EFF's request. I'm just saying this
seems to happen quite often. For example, even though Apple was trying to make
things better for Foxconn employees, they were actually the ones being
targeted and criticized "for not doing enough", a lot more than the other
Foxconn customers were.

~~~
jrockway
There are two factors at play.

Imagine you want a date. Do you call up your favorite celebrity and ask him or
her out? No. You find someone that you like that has a greater than 51% chance
of actually saying yes. (OK, it doesn't need to be 51% since you stand to lose
less than you could gain. But some mental calculation like that is going on.)

The other factor is Internet hype. Try this: write a story involving Google or
Apple as the protagonist, submit it to HN or Reddit, and watch as the Internet
goes crazy for it. The companies are "hot" now, and merely mentioning them
sells newspapers (or pageviews, or Reddit karma, or whatever). If what you're
writing is technically true and contains controversy, all the better.

The first factor rules out Apple. The second factor rules out Microsoft. And
who's left?

~~~
bsullivan01
Or maybe the two faced Google is the one trying to win brownie points with the
tech crowd, while applying for patents on bill splitting?

------
javajosh
What is the nature of the EFF's power? Can they harm Google calling them a
hypocrite[1][2] if only via reputation or public shaming? Will programmers on
certain forums, for example, be less likely to accept a Google position
because of Google's patent policies, especially ones that are highlighted by
the EFF?

Then I think: apart from fearing the mighty EFF's vast and influential power
(ha), what other concerns might motivate the patent decision maker at google
(whoever that is) to take action in this case? Perhaps they are motivated by
the respect of their colleagues. Perhaps they have something I read about in
college, called a "conscience", which I was led to believe was a powerful
influencer of individual behaviors. Wouldn't that be amazing, if the decision-
maker at Google actually told the world that their _conscience_ wouldn't let
them take a certain action they believed to be wrong? That would be a massive
win, in so many ways, and for so many people.

And I, for one, might call back that Google recruiter.

[1] [http://googlepublicpolicy.blogspot.com/2013/02/lets-
defend-i...](http://googlepublicpolicy.blogspot.com/2013/02/lets-defend-
innovators-against-patent.html)

[2][http://www.geekwire.com/2013/joke-google-seeks-patent-
splitt...](http://www.geekwire.com/2013/joke-google-seeks-patent-splitting-
restaurant-bills/)

------
throwawaykf02
To be fair, something that gets the extreme cases of bill-splitting right
probably deserves a patent, if not a Nobel. After all, Bistromathics _is_ the
most powerful computational force known to parascience...

------
bsullivan01
_Now, we understand you may never assert this patent. Given your history, you
may only be acquiring it "defensively."_

This is the same argument as Obama used for the bill allowing indefinite
detentions [https://www.aclu.org/national-security/president-obama-
signs...](https://www.aclu.org/national-security/president-obama-signs-
indefinite-detention-bill-law) without a trial: "I will never use it" or
something like that. The point is that it should never exist, what happens
next year or five years from now?

By the way Google is a convicted patent troll,
[http://finance.yahoo.com/news/microsoft-says-wins-patent-
tri...](http://finance.yahoo.com/news/microsoft-says-wins-patent-
trial-004332318.html)

~~~
pavanky
> Though the award was just half of the $29 million in damages Microsoft had
> sought, the company hailed today’s ruling as a landmark victory “telling
> Google to stop abusing patents.” But the patent battle predates Google’s
> 2011 acquisition of Motorola Mobility. Microsoft first sued the phone maker
> in 2010 for overcharging on patent licensing.

Source: [http://techcrunch.com/2013/09/04/motorola-versus-
microsoft/](http://techcrunch.com/2013/09/04/motorola-versus-microsoft/)

Please try to stop inventing facts. EFF does this thing for a living, I would
think they would not miss something as obvious.

~~~
skj
I see examples, time and time again, of companies (especially Microsoft)
twisting facts to make sound-byte-style comments that make Google look bad.

However, I cannot think of a single example where Google has done that about
any company.

Can someone prove me wrong?

~~~
throwawaykf02
See the whole "Bing rips off Google's results" thing. No less than Stephen
Colbert fell for it and the truth never got as much publicity. People still
believe Bing scrapes Google.

Interestingly, the whole thing was instigated by Vic Gundotra, who's ex-
Microsoft...

~~~
jmillikin

      > See the whole "Bing rips off Google's results" thing.
      > No less than Stephen Colbert fell for it and the truth
      > never got as much publicity. People still believe Bing
      > scrapes Google.
    

[http://searchengineland.com/google-bing-is-cheating-
copying-...](http://searchengineland.com/google-bing-is-cheating-copying-our-
search-results-62914) is a comprehensive and detailed writeup of the
accusations. Do you have an alternative explanation for how the results for
those particular obscure random text strings propagated from Google to Bing?

    
    
      > Interestingly, the whole thing was instigated by Vic
      > Gundotra, who's ex-Microsoft...
    

In that same article the author says he was contacted by Amit Singhal and Matt
Cutts, not Vic Gundotra (they don't even work in the same division):

    
    
      > My last meeting of the day was with Singhal and Cutts —
      > where they shared everything I’ve described above,
      > explaining this is one reason why Google and Bing might
      > be looking so similar, as our columnist found.

~~~
throwawaykf02
_> Do you have an alternative explanation for how the results for those
particular obscure random text strings propagated from Google to Bing?_

How about this link from the very article you quoted?

[http://searchengineland.com/bing-why-googles-wrong-in-its-
ac...](http://searchengineland.com/bing-why-googles-wrong-in-its-
accusations-63279)

I know you work for Google, so you must have the technical competency to see
the nuance; can you say with a straight face that this was "copying"? Is it
any different from the tracking Google of Facebook do across the web via their
various products?

Like I said, the truth is more nuanced, but people only remember the
scandalous version.

> Amit Singhal

You're right, my bad. I completely misremembered.

~~~
jmillikin

      > I know you work for Google, so you must have the
      > technical competency to see the nuance; can you say with
      > a straight face that this was "copying"?
    

My personal belief is that it was copying, yes. There is no other legitimate
reason to phone home which results a user clicked on in a competing search
engine.

    
    
      > Is it any different from the tracking Google of Facebook
      > do across the web via their various products?
    

When I go to a site with Analytics on it, the site operator chose to put that
code on their page and they're the ones using the resulting data. In my
opinion, tracking scripts are morally no different from analyzing server logs.

In contrast, the toolbar in question appears to record the user's behavior
across the entire web, then send it back to the toolbar's developer. The
purpose appears to be distributed scraping of search results across various
search engines (it's not just Google being copied from, here).

If Chrome reported which links people clicked on to Google, there would be an
uproar (and rightly so). In terms of malicious behavior, tracking a user's
clicks on web sites and sending them to a third party is only one step above a
keylogger.

~~~
throwawaykf02
_> My personal belief is that it was copying, yes. There is no other
legitimate reason to phone home which results a user clicked on in a competing
search engine._

It phones home with _all_ the links a user clicks, not just on a competing
search engine. The legitimate reason is that users have chosen to do so in
order to "enhance their surfing experience". The reason may be BS but users
are given an option. Suggested Sites is explicitly opt-in and IIRC (can't
verify, on a Mac), the toolbar installer defaults the checkboxes to opt-in but
presents a screen to opt-out during installation. So at least users are given
a choice. Websites that use Google Analytics and similar products don't even
do that. (Except if you're in the UK and have to obey the "cookie" law.)

I would argue that a website operator has less of a right to say what happens
to the data about users' behavior than the users themselves. So, in my opinion
it's fair game for Bing to use that data.

You could argue users are technically clueless and don't know what they're
opting in to, but again, even giving them an option is more than what website
operators and Google (and Facebook and Bing itself) does all over the
Internet.

 _> If Chrome reported which links people clicked on to Google, there would be
an uproar (and rightly so). In terms of malicious behavior, tracking a user's
clicks on web sites and sending them to a third party is only one step above a
keylogger._

Google itself tracks which of the links on its search results users click, so
that they can use it in their search rankings. And, of course, Google also
tracks users across the entire web so that targeted ads can follow users
across sites. Just because it's the web page itself that does the tracking
rather than the browser does not mean you are not tracking them. Why is one
"just a step above malicious" and the other perfectly alright even when the
end result is exactly the same?

------
wissler
I agree with the sentiment but as a publicly owned company it may be
considered in breach of duty to stockholders to commit to such a thing. These
companies are about only one thing: how much money can we get? If they make
good stuff along the way, that's OK, but that is not their purpose. It's a
reversal of proper means and ends. In our system, money is the end, creating
things is the means. In a proper system, it's the reverse.

~~~
calt
And google is the king of unusual business models. It can be in a company's
wallet's best interest to be moral if it drives up sales and trust. I can
think of countless companies that exist in the "we're green so buy us" space.

