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Google: Patently Absurd (daringfireball.net)
135 points by joshus 1459 days ago | 151 comments



It's weird to me that Gruber claims, like he did in a recent episode of his podcast with Dan Benjamin, that he's not anti-Google. I mean, why deny something that's so self-evident?

His arguments here are just so disingenuous.

"So if Google had acquired the rights to these patents, that would have been OK."

Yes, because Google isn't forming a cartel to stifle competition.

"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?"

Yes, because Google isn't using an artificial barrier (the patent system). And because those patents are bogus. Because most, if not all, software patents are bogus. That's pretty clearly Google's stated position.

"First, the “estimate” of $1 billion was partially set by Google itself."

But there's no denying that this is by several times the largest amount ever paid for a patent portfolio.

"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."

Yes they are arguing against the patent system, at least for software, as do many in the industry. There's nothing hypocritical about that.

"Google supporters claim that Google only wants to use patents defensively. But what exactly does Google need to defend against, if not actual patents Android actually violates?"

This argument betrays either a very weak understanding of how defensive patents work or a deep dishonesty of argumentation. Maybe both. This argument can be applied to the very idea of defensive patents.

It's conflicting that someone who's so obviously intelligent and often terribly insightful (not to mention witty) can be so willfully dishonest.

I'm going to back to only reading Gruber's writing on Apple, and ignoring his writing on anything else.

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I used to really like Gruber, but he's become a very twisted orator, who seems to bend everything to Apple's favor. Maybe he was always that way, and when Apple was the underdog, it felt more like cheerleading than dishonesty.

I felt a decent amount of relief when I dropped him from my RSS reader.

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He recently posted a link to a story about Amazon removing the various buy bits from their app, which the snarky commentary "That wasn't hard, was it?"

A few hours later he completely changed position to one where he was mildly critical of Apple for making the app less user friendly. I suspect his overwhelming bias just became too strong for even him to bear.

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Ouch. That's pretty bad. Do you know if anything captured the change (Google cache, Internet Archive, etc.)?

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I think it's a bit unfair to call him willfully dishonest. I find Gruber's writing really fascinating in that he's clearly intelligent but he appears to have no awareness of the way he twists things like this. It seems more likely to me that he is a case study in cognitive dissonance.

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I'd look at hn_decay's comment about Gruber's response to the Amazon "buy button removal". That's getting pretty close to willful in my book (especially since he made the change without noting it).

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Its particularly strange because he himself has linked to the NPR story: http://daringfireball.net/linked/2011/07/25/when-patents-att...

It would seem like someone who links to that (and apparently agrees with it), would not say something like "But what exactly does Google need to defend against, if not actual patents Android actually violates?"

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It isn't inconsistent to be opposed to patent trolls without being opposed to patents in general.

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His comment was specifically criticizing Google's position of wanting to have defensive patents:

    Google supporters claim that Google only wants to use patents defensively. But what exactly does Google need to defend against, if not actual patents Android actually violates?
He is basically scoffing at the very idea of defensive patents. Someone who understands and accepts the concept of patent trolls should also understand the strategy of defensive patents and shouldn't hand wave it away.

This should be particularly obvious in the Nortel case because everyone was theoretically an infringer until the very moment that someone won the bid, at which point the winner magically becomes non-infringing and the loser is all of a sudden an "idea stealer".

Just think about it this way: had Lodsys or Intellectual Ventures been able to afford Nortel's patent portfolio they'd be suing everyone right now and I can guarantee Gruber would not be saying "well, Apple did violate actual patents", instead he'd be calling it patent trolling.

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Isn't the whole problem with patent trolls that defensive patents don't protect you against them? For better or worse, the current system is largely based around mutually assured destruction. The patent trolls don't make any products, so they don't actually have anything to lose from the assertion of these defensive patents against them.

It seems like what Gruber is actually saying is that the patents Google is violating are legitimate, invented and/or owned by companies that are actively making products based on those patents. The fact that some of those companies (Apple, for instance) may choose to then enforce their intellectual rights doesn't make them patent trolls; having your company's sole business be suing people over violations of patents you purchase makes a company a patent troll.

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You have the answer in your own comment:

    For better or worse, the current system is largely based around mutually assured destruction.
That is what defensive patents are. Google is saying that they want patents so that no one will attack them (because then they'd sue back, hence bringing on said mutually assured destruction).

    It seems like what Gruber is actually saying is that the patents Google is violating are legitimate
Do you think Gruber has read these patents? Also, it doesn't even matter since they were NORTEL'S patents to begin with, so Apple was violating them too up until the point where they bought them. If these are really valid patents, why wasn't he complaining about poor Nortel's IP being infringed on by Apple when the iPhone came out?

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Gruber is no Google-lover, but in this case he is right on the money for calling out Google's hypocrisy. What if Google won the Nortel patents with their pi billion dollars bid?

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Do you know of any case of where Google has used its patents offensively? I don't.

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Here are all the patent cases in which Google was a plaintiff. They appear to all be declaratory judgments against NPE defendants.

4:2004-cv-04922 Google Inc. v. Skyline Software Systems Inc. 5:2005-md-01654 In re Compression Labs, Inc., Patent Litigation 5:2004-cv-03934 Google Inc. v. Compression Labs Inc et al 4:2008-cv-04144 Google Inc. v. Netlist, Inc. 3:2009-cv-00642 Google Inc. v. Traffic Information LLC 1:2011-cv-00175 Microsoft Corporation et al v. GeoTag Inc. 1:2011-cv-00637 Google Inc. v. Sourceprose, Inc. 4:2009-cv-01243 Google, Inc. v. EMSAT Advanced Geo-Location Technology, LLC et al

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There is a difference between being a plaintiff in a patent case and using patents offensively. In the Skyline case, it looks like Skyline sued Google over Google Earth: http://googlecopyright.blogspot.com/2007/03/google-prevails-...

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Sidebar question: how did you find these? I'm researching a related topic and need to perform bulk searches for patent related litigation data. Any suggestions or advice would be greatly appreciated.

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That makes no sense. How can you sue a non-practicing entity for infringing your patents? If they're non-practicing, they're not doing anything.

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Being a plaintiff doesn't always mean you're the one suing. It could be an appeals court case where the positions are reversed. Also, you could sue an NPE in order to invalidate their patent(s), or to seek an injunction.

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But what if Google had won the bid and was using these patents (they hadn't developed) defensively to defend against the fact they have violated patents developed by others companies, would it more fair? I don't think so.

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No, but you can play "what if" games to death. You can't be slighted as being hypocritical for something you haven't done yet, which is what Gruber is claiming.

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Complaining about huge bids that are more than what these bogus patents are worth is pretty hypocritical if you yourself bid over $3 billion for them.

I think Google is whining because they didn't win, and they know communities like this are anti-patent and will automatically side with them if they portray it a certain way. It's hypocritical to complain about the patent system and that competitors won patents you also wanted and were bidding on.

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Sure, maybe it'd be unfair (in your view). However, Gruber paints it as hypocritical, which it's not. Google's actions (and the blog post under review) reflect a cohesive ideology: software patents are bunk.

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The problem is, everybody infringes countless software patents because the system is broken. What matters is how you play the game from that starting point. Google wants to be able to defend itself, while others seem to want to gang up on Google and attack it.

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then it would be hypocrisy. but they didn't. so its not hypocrisy.

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So what? Google is a relatively new company. To say they would spend all that money on patents and then not attempt to enforce them is very naive.

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Sun Microsystems did exactly what you are saying, and Google has gone on record, multiple times, saying it would do exactly what you are saying.

It is not without precedent at all.

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I don't think Google wants to follow Sun's example of developing amazing tech and going out of business anyways because the folks in charge don't know how to run a business.

Not that non-assertion of patents was necessarily a contributing factor to Sun's demise.

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Did the soviet union ever used their nukes offensively?

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That's because they don't have any patents of their own to sue with. Before they acquired IBM's patents, they had a total of less than 800 patents.

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Exactly, funny how the android fan boys down ranked your comments.

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Then they would have unhypocrytically continued to use them only defensively. Can you explain exactly how Google is being hypocritical in this case?

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They are being hypocritical by saying that Apple and Msft bid many more times than what those patents are really worth, when Google itself bid upto 4 billion dollars. And what gaurantee does Google provide that they wouldn't sue competitors aggressively? Dont tell me its because their 'motto' is Dont be evil.

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>And what gaurantee does Google provide that they wouldn't sue competitors aggressively?

So they are hypocritical because of something they haven't done? By that logic, everyone is an hypocrite.

Has Google ever actually sued competitors aggressively? Not that I know of.

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The difference is that even if Google were to try to use those patents offensively against Apple and Microsoft, they probably wouldn't have much of an impact- Google's motivation was defensive, and they pretty much had to try for those patents.

On the other hand, Apple and Microsoft are /already/ having an impact on Android and these patents would only strengthen them- their motivation was offensive and they were the ones who inflated the prices just to hurt Google.

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Then it would be perfectly fine, they would be able to stop Microsoft and its elk from extorting patent fees, but the whole issue lies in that the patent went to Microsoft and Apple and others like them for the sole purpose of extorting Android.

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"Yes, because Google isn't forming a cartel to stifle competition."

Hmm. I'm not so sure. There's a way to see Google's behavior where what they're doing is precisely that.

Predatory pricing exists when you try to take over a market by selling something so cheap, other competitors are driven out – or prevented from entering, since they couldn't recoup the costs involved in developing a product.

In league with their manufacturing partners, Google has their own cartel, attempting to homogenize the smartphone landscape under a single, free OS.

The incentives are obvious: it's much easier for Google to make its ad money if it controls the next big platform.

They may have dressed it up as pious and open – but for their purposes, it's a land grab. Is it anticompetitive? I'm not sure. My antitrust scholarship began and ended with The Microsoft File back in the 90's. But I'm also not sure it's any better than whatever satanic pact they are intimating has been formed by Apple and Microsoft.

Google's argument here is summed up as "You could trust us with those patents. But we didn't get them. You can't trust the guys who did get them." I'm pretty sure at this scale, with this much cash on the line, business just doesn't work that way. Google will run over anyone to keep their ad money flowing, just as Microsoft will run over anyone to keep their license money flowing. Why should we side with one cause over the other?

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> Predatory pricing exists when you try to take over a market by selling something so cheap, other competitors are driven out

This is what happens when innovation threatens dinosaurs. Phrases such as "predatory pricing" exemplifies a fundamental misunderstanding of how pricing works, or markets in general.

People forget the whole point of the market is to serve the consumer. The point of the market is not to protect the interests of old tech giants because they can't compete with free. They're willing to prevent consumers from enjoying the satisfaction that Android has to offer because they want money for doing what Google offers for free. By this logic I should start a search engine that charges $10 a search, then sue google for anti-competitive practice.

Everything about business is predatory. Every time a company releases a better product it is predatory to their competition. Offering an edge your competitors can't handle is kind of the point. If Google's pricing is so "predatory", why doesn't the competition do the same? Because they're ethical?

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> Everything about business is predatory.

By that reasoning, Google should have either bought the patents or taken their lumps when they lost, right? If business is inherently predatory, whatever predatory groups wish to form are free to do so in the advancement of their own interests. Why is it for Google to bandy about anticompetitive concerns, crying "DOJ!" but not their competitors?

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No, because patents aren't a normal part of business. They're an artificial limitation by the legal system intended to promote innovation but instead are promoting senseless law suits by companies who can't/don't want to deal with normal business.

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Anti-competition isn't an empirically observable phenomena. In theory it was supposed to serve the consumer, but there is a disconnect between the alleged intention and reality. Kind of a big problem. Preventing a company from offering a free product in no way serves the consumer.

I don't want to imply google is more ethical than the competition, but in this instance calling for an abolition of patents is in line with my personal views, which is markets should serve the consumer. I have no unconditional support for any of these companies.

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Preventing a company from offering a free product in no way serves the consumer.

In a general context, a company practicing 'predatory pricing' may do so to drive the other competitors out of business. Once that happens, it's free to raise prices to monopolistic levels which would end up hurting consumers eventually.

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> Once that happens, it's free to raise prices to monopolistic levels

These fears are not based on evidence. When has someone released a free product only until they wiped out all the competition, proceeding to jack up prices? I mean, once they jack up the prices there is an established market ripe to pick customers from. Furthermore, the temporary profits, if any, would only be temporary and would be a greater cost to their corporate image.

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Jacking up prices isn't the only potentially-negative consequence of driving its competitors out of business, nor is it a requirement to be considered anti-competitive. The history of Internet Explorer is an interesting illustration of both.

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Adobe InDesign hiked in price once it was clear that Quark was no longer a real threat. That said, InDesign was a better product almost right from the start. But just sayin'

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Thank you for raising this point, because it's only in this case that lower (free) prices are anti-competitive. If the company raises prices to _above_ fair market value after their artificially low prices have driven out competition then the DOJ comes after them. If they leave the product free forever, that's not a problem because it's good for the consumer.

So my question to the Google nay-sayers is do you expect Google to raise prices on Android once they have forced MS and Apple out of the smartphone market? Or do they just have a superior product model in which they can offer free software and make money on ads while their competition must charge for the software. I personally don't think they will ever raise Android prices so it's just good competition.

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Don't forget that Android is open source (except version 3, but we're talking about phones now). This means that if Google decided to charge for it, they could only do so on new versions, and anybody could start from an old one, fork it and bring it further. This is completely different from free non-open-source software, where it could be actually possible to raise prices once the competition is wiped out.

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Google almost certainly does not intend to suddenly start charging for Android once iOS and Windows7 are out of the picture.

More likely their intention is to keep it free, but with additional "conditions" such as Google search being the only way to find information. Mandated use of Gmail, Google Docs, Calendar, Contacts. Heavily integrated Google Plus social features like chat, blog, and photo sharing.

Google won't need to charge for Android because there will not be a way to avoid a Google tentacles if you use their OS. Google is trying to burn down the ecosystems of it's competitors with free products and make money by being the gatekeeper of your every activity with a smartphone.

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Competing in a free market is ethical. Abusing a flawed legal system is unethical. Who wins or loses is irrelevant. The issue is who is playing fair and who is cheating.

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Andriod is offered under Apache License, Version 2.0[1]. Which is a part of Open Source Inititive[2]and part of their mission statement is "an end to predatory vendor lock-in."

Reading Apache 2[3] it looks like "an end to predatory vendor lock-in" is acheived by making it possible for anyone to use the source including Microsoft and Apple. If the land can be used by anyone it is hard for me to think of it as a land grab.

[1] http://source.android.com/source/licenses.html

[2] http://www.opensource.org/

[3] http://www.apache.org/licenses/LICENSE-2.0

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That argument is fair and interesting, but it has no bearing on the current issue:

"So if Google had acquired the rights to these patents, that would have been OK."

It's in no way hypocritical for Google to try to acquire the patents and then, on subsequent failure, condemn their acquisition by the opposing consortium.

I'd be willing to entertain arguments along the lines of Google's anti-competitive behavior, but I find their stance on patents is cogent and consistent. I find Gruber's argument to be, OTOH, totally disingenuous.

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Predatory pricing exists when you try to take over a market by selling something so cheap, other competitors are driven out

This doesn't really hold for something that doesn't have to be physically "produced" like a software license. If that were the case, you could accuse every open source alternative of engaging in predatory pricing. Usually you see this term applied to physical goods, when a company sells them at or below cost for the sole reason of forcing out a competitor who cannot stay in business doing the same.

... or prevented from entering, since they couldn't recoup the costs involved in developing a product.

Well, Android started as a little company that Google eventually bought. There's no reason why someone couldn't do something similar. The barrier of entry is pretty low, at least for the software stack. Getting it onto real devices is another matter, but I don't think that part is particularly relevant here.

Hell, there's no reason why MS couldn't license WP7 for free. They just choose not to.

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It's been a while, but a long time ago I heard the phrase, "The Rolling Stones are not in the music business, they're in the t-shirt selling business." In that way, I think if you examine Google's practices and its strategy with Android, it's that Google is an advertising company. It's where all their money comes from. Microsoft, Apple, and Oracle are traditional software companies in the sense they derive their profits from consumers and businesses purchasing services.

> They may have dressed it up as pious and open – but for their purposes, it's a land grab. Is it anticompetitive? I'm not sure.

Well, then, isn't GNU/Linux in general anti-competitive? Or free-libre software since many developers don't charge for services?

As for Google's trustworthiness with patents versus patent-abuse, anyone know a site with a good summary of Google's patent disputes?

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Predatory pricing exists when you try to take over a market by selling something so cheap, other competitors are driven out – or prevented from entering, since they couldn't recoup the costs involved in developing a product.

Fair point, and that got me thinking:

Would you say the same about the iPad?

Would you say that Apple is stifling competition in the tablet space by making a tablet that's really good and reasonably priced? That's also technically speaking, stifling competition right?

Yet, I don't think anyone would argue that Apple is doing anything unfair.

So what's the difference?

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I think you'd have to look at the margins and intent involved.

If Apple was foregoing any margin, and perhaps even operating in the red in attempt to prevent competition, that would get a little touchy. For example, if tomorrow Apple slashed the iPad's price to $150 just to fuck over the rest of the market, that'd be weird.

But the thing is, Apple isn't invoking the DOJ or crying "anticompetitive." Google is. So they need to have competitively clean hands if they want that to mean something. I'm not sure they can claim that.

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> It's weird to me that Gruber claims, like he did in a recent episode of his podcast with Dan Benjamin, that he's not anti-Google. I mean, why deny something that's so self-evident?

Because he's not really anti-Google, he's just pro-Apple (read Apple fanboy).

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That was Benjamin and Arment, not Gruber.

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To stifle competition one not necessarily needs to form a cartel.

To stifle competition one can simply flood the market with goods priced under cost.

Besides, Google formed a cartel with Intel, they lost.

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Android is not priced under cost, it just has a different revenue model. Stifling competition happens when a company uses their cash reserves to sustain a product which is losing money, forcing smaller companies to leave the market. This is not what they're doing, at all.

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I'm not sure how to say this without coming across as incendiary, but what the hell? Is Gruber utterly oblivious to the horrible state of software patents and their abuses? Is he actually condoning the abominable software patents that every other sane developer despises?

Yes, Google is trying to ward off being picked to death by a myriad of utterly worthless (in the market, not legal sense) patents. Yes, Google is likely in violation of several thousand patents with Android, and all of its other software products. Guess what? So is damn near every other developer on the face of the planet, but Google has a big fat target painted on their back because of Android's success. They would be crazy to not try to acquire a defensive patent portfolio.

I'll guarantee you that I violated a good half-dozen patents in the course of my absolutely routine work today. That doesn't mean that I'm a mean nasty violator out to undermine free enterprise, it means that software patents suck. Apple and Microsoft have both proven that they will use these garbage patents offensively to drive competitors out of the market, and Google is left in the position of "acquire means of mutually assured destruction to protect ourselves with or die by horribly broken patent law". Which do you think is the sane and responsible course of action?

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"No one other than Nathan Myrvold and his cronies sees the U.S. patent system as functioning properly, but Google’s hypocrisy here is absurd. Google isn’t arguing against a handful of never-should-have-been-issued software patents. They’re not arguing against patent trolls like Myrvold and his shell companies like Lodsys — companies that have no products of their own, no actual inventions, just patents for ideas for products." - Gruber

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That one line doesn't really discount the tone of the whole rest of the post.

Google supporters claim that Google only wants to use patents defensively. But what exactly does Google need to defend against, if not actual patents Android actually violates? - Also Gruber.

The implication is that these are legitimate, unassailable patents that Google has ripped off in some nefarious scheme to steal Apple's good ol' homegrown American hard work. Software patents are a severe problem that are retarding innovation and progress, not helping it, and to imply that Google is hypocritical because they wanted the patents, then railed against them is intellectually dishonest. Google's extremely obvious goal is to protect itself and its products from the abuses of the patent system. For Gruber to pooh-pooh their actions like that is effectively a means of condoning those patents - and software patents as a whole - as legitimate and worth protecting.

I'll guarantee you that if it were Google holding the patent gun to Apple's head, and Apple were to post a similar PR statement after a failed bid to acquire said patents, he wouldn't be singing the same tune.

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The implication is that these are legitimate, unassailable patents that Google has ripped off in some nefarious scheme to steal Apple's good ol' homegrown American hard work

I would argue that android "borrowed" a lot from Apple, and that the iPhone was truly innovative in many ways. The question whether they copied too much, or whether Apple's idea were innovative in the first place is what the Patent system is trying to answer.

There is little doubt the current patent system is a big mess. But I see opposing the idea software patents in the same light as opposing patents in general. It is likely that allowing companies to copy everything is good for consumers (at least in the short term), and increases competition.

The question is where you put the line, for example - if Android was an exact copy of iOS, would you still say that it should be permitted?

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I don't think you can mention Android borrowing from iPhone while ignoring that iPhone borrows from Android too - iOS 5 notifications being the prime example.

All complicated systems borrow from each other - there is nothing evil about it - it's just evolution.

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Can you show us the patents Google has on notifications?

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Let's first try to understand what is implied by your question. Is it that unless an idea is patented it does not qualify as innovation and in that case if someone else copies it, it becomes acceptable?

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The whole "did Android copy iPhone or not" is beside the point in the patent debate. The patents Apple is asserting against HTC (the only ones that made it past the first round of the ITC process that determines whether Apple can get an import ban) are from the 90s! 1994 and 1996, IIRC.

Can we all at least agree there is nothing innovative that Apple did for the iPhone that dates back over 10 years before it was released?

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How is that relevant? Nortel's patents do not represent the cases where Android borrowed from iPhone, if they did, then they would be Apple's patents wouldn't they? These patents were being violated by BOTH parties, and one happens to own them now.

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What exactly did Android borrow from Apple?

If Android was an exact copy of the iOS but developed separately (with no code copying) that would be perfectly OK. Why shouldn't it?

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Ideas are worth almost nothing. What matters is execution, and Google hasn't ripped off any of Apple's execution.

So what if Android borrowed a lot from Apple? It doesn't make the iPhone any worse, and we all benefit from cross-pollination of ideas.

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I wouldn't say that. Some people are really great at execution but can't think of an original idea if their life depended on it. Conversely, there are those brilliant creative people who can't make a scrambled egg.

Having a finished product like the iPhone as a horizon surely helped Android. But of course, that's not the whole story. Only Google managed to be inspired by the iPhone and launch a successful competitor. The rest of the industry was simply inspired.

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The issue here is that Gruber seems to believe that Myrvold is the only person with junk patents, and the only person abusing the patent system. Of course his beautiful saintly Apple couldn't be doing the same! No, no, of course not. It's just that Apple actually builds stuff, so we give them some respect.

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Amen. EVERYONE violates patents when writing software, even a simple web app. Be sure of it. The best defense (I've been told by laywers) is NOT to look up possible patents, so at least you can say you didn't know if you ever get sued. It's a strange world. Google is totally doing the right thing.

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I don't think that Gruber was making a case for software patents. He has said in the past that he doesn't believe in them. His argument seemed to be that instead of Google lobbying to rid the world of software patents, they seemed to be playing the same game as MS, Apple & Oracle by bidding on the Nortel patents. It doesn't help Google's case that they're an investor in Intellectual Ventures as well.

He makes an interesting point that if software patents are valid then why should these other companies allow Google to use it and give away Android for free to undermine their own business.

It's all the more reason that the patent system needs to be reformed but it will never happen because there are too many powerful people involved that don't want to see it happen.

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I don't think that Gruber was making a case for software patents.

But he was. He is arguing that only a small handful of patents -- those used to attack Apple and/or app store developers -- are the problem with the patent system. That is directly in the section quoted.

His argument seemed to be that instead of Google lobbying to rid the world of software patents, they seemed to be playing the same game as MS, Apple & Oracle by bidding on the Nortel patents.

Google is essentially the bitch of the patent world right now, simply because they're a younger company and a land claim occurred. They can both appeal for changes -- which that very blog entry does in droves -- while preparing for the reality that nothing is going to change overnight.

Google will likely acquire a lot of ammunition (the IBM purchase puts them in a very interesting position relative to Oracle, threatening Oracle's entire platform), make life painful for its competitors, and then will be in a position to call for change without everyone declaring, as they are now, that it is merely convenience.

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Google is essentially the bitch of the patent world right now, simply because they're a younger company and a land claim occurred.

I think the real problem with Google is they're using open source technology. This makes yout a lot more susceptible to patent lawsuits.

Back when I used to control patent budgets one of our rules was that things we patented had to be discoverable. That is, if someone infringed, but it was hard to prove, it wasn't worth spending the money on a patent. Just keep it a trade secret. With Android everything is available by just looking at the source code repository. With iOS, WebOS, WP, and RIM, you have to do a fair bit more sleuthing to see if they're actually infringing.

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I'll give a cookie to the first person to find me a patent that Markdown infringes :p

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You're absolutely right. Here's (yet another) example of Hacker News violating one of Apple's patents (as asserted against HTC): http://www.google.com

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i think you missed the point.

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Gruber's argument is dependent on the assumption that only people like Nathan Myrvold hold what I'm going to call "bullshit patents".

"Google isn’t arguing against a handful of never-should-have-been-issued software patents. They’re not arguing against patent trolls like Myrvold and his shell companies like Lodsys — companies that have no products of their own, no actual inventions, just patents for ideas for products."

Unfortunately, just because you actually make products doesn't mean that you are incapable of holding and/or abusing bullshit patents. Apple owns more bullshit UI patents than most other companies that I can think of, and they've made it clear over the years that they think it's morally right, not just defensively necessary, to patent user interface ideas.[1]

Apple has not, historically, abused its patent portfolio to the same degree that Microsoft or Oracle have.[2] However, now that they've thrown their hat into the same ring, they're getting lumped in with these dastardly anticompetitive badguy companies when this comes up in the tech press. I'm sure that makes Apple - and Apple fans - uneasy. It seems like they're being blamed for their newfound parters' bad behavior. Well, I'm sorry. You sign a deal with the devil, and you better buckle in.

[1] As as someone who designs and builds UIs for a living, I think this is complete bullshit. Copyright should protect UI; patents should not.

[2] Although they have done so. Just not as much.

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Copyright should protect UI

But it doesn't. http://en.wikipedia.org/wiki/Lotus_v._Borland

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Very true! I was thinking of UI art assets. Aspects related to the layout or behavior of a UI (having a touchscreen interface, momentum scrolling, etc.) should be (IMO) neither patentable nor copyrightable.

When you get into issues of truly ripoff UI, trade dress [1] seems like the most natural solution to me. However, the legal standing of UI w/rt trade dress is still being determined.

[1] http://en.wikipedia.org/wiki/Trade_dress

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um, that is not what that decision says. It says the interface may be covered by copyright to the extent that it contains expression. That would seem to me to have a large overlap with look and feel patents.

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You are mistaken.

It is saying that copyright applies to a user interface insofar as elements of it are subject to copyright on their own, but that "a user interface" is not itself expression, not itself subject to copyright. If you copied every last detail of my interface except the icons or other elements subject to copyright, I would have no valid claim that you infringed on my copyright.

(NB:I am not saying this is bad or wrong at all. Only that it is so, and that it's relevant.)

The trouble that stems from this is that what we call a "user interface" is not exclusively or even mostly elements subject to copyright, but consists of methods and behaviors that are often the product of much ingenuity and innovation. This is why various parties have sought patents for aspects of the interfaces they develop--because those things aren't subject to copyright.

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I disagree with your interpretation. The collection of expressive elements such as icons seems copyrightable in aggregate as much as any of the individual elements. What that decision says is not copyrightable is an organization of data (including choice of words that would struggle to qualify as expressive). If they had allowed the copyright on that then things like logical taxonomies would also be copyrightable. User interfaces not built with a platform's standard interface elements are more akin to works of art and can be expressive and assuming it was copyrightable then determining if a clone was infringing would depend on if it was a true clone or if there was some transformative change.

I'm not sure what is accepted case law, but the cited case seems much narrower to me than you are implying.

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"But what exactly does Google need to defend against, if not actual patents Android actually violates?"

Of course Android violates patents. Just like any sufficiently non-trivial piece of software...

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Absolutely spot on. That being said, in this rare occasion, I think John Gruber is raising points that needed to be raised. If you read Google's version of the story, it'd seem like Google is the champion of innovation and it is being targeted due to the success of Android, and crucially, it's in the customer's interest that these patents shouldn't be used against them. Well not really; it's basically in Google's interest. To say nothing about their own 3.14 billion dollar bid for Nortel's patent portfolio and then claiming that their true worth was 1 billion, being completely disingenuous.

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it is being targeted due to the success of Android, and crucially, it's in the customer's interest that these patents shouldn't be used against them

The first is obviously true, and I'd argue the second is as well. An effective duopoly of iOS and WP7 would be bad for consumers in the short term due to decreased competition, and even worse in the long term due to the effects of all mainstream mobile platforms being locked down.

Well not really; it's basically in Google's interest.

Not mutually exclusive.

To say nothing about their own 3.14 billion dollar bid for Nortel's patent portfolio and then claiming that their true worth was 1 billion, being completely disingenuous.

How? Google's claim is that if the patent system were fixed, Nortel's patents would be worth much less than they are in the current environment.

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"An effective duopoly of iOS and WP7 would be bad for consumers in the short term due to decreased competition, and even worse in the long term due to the effects of all mainstream mobile platforms being locked down."

I broadly agree with you on this count. However, I think that for us, the techie community, the fact that a majority of mobile platforms are locked might be an issue; for the average customer it is not.

"Not mutually exclusive." Again agreed broadly but it can be argued that at the end of the day Google is a company chasing revenues (just like every other company) and not having to get involved in patent litigation is going to save "them" money. While the patent system might be broken, but as long as it's not fixed, Google has to play along (just like MSFT and AAPL). I just do not see how they can ever take the higher ground here, other than being miffed at missing the deal.

The true price of any commodity is not static, it is always dependent on competition/availability/demand etc. The patents might be worth 1 billion, but if Google offered in excess of 3 billion, they thought that it was worth the price "in the current environment". Also Google can claim that the patents were worth 1 billion, but they have a vested interest in portraying this as being the case. I am a little cynical of such claims.

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It is in the customers interest that these patents not be used against Google. The patent trolling being done by Apple/Microsoft/etc against Google is raising (or at the very least attempting to raise) the price of Android phones.

Raising the cost of a product through litigation is not in the interest of customers.

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To rewind a bit, Apple didn't open this can of worms.

Several companies, all used to using patent suits as a cross licensing negotiation tool, got pissed at the lopsided profitability of truly innovative products in the mobile space, and started to sue. Kodak sued Apple. Nokia sued Apple. And no wonder -- shipping 5.3% of handsets, Apple's taking in 66% of mobile industry profits. How do you mollify your shareholders that some non-handset company is eating your lunch? You try to get a licensing fee.

Apple was new to this game, didn't start by playing it, but thanks to embarrassingly unprecedented success, got turned on from all sides, and drawn in to the fray. Now those throwing stones are realizing Apple (with 25 years of mobile device R&D the phone guys forgot about) can throw back.

I shared the timeline a year ago: http://news.ycombinator.com/item?id=1166321

... to put this in context:

- Apple accuses HTC of iPhone tech theft (2 March 2010)

- Kodak prompts ITC to consider iPhone ban (18 February 2010)

- Motorola seeks ban on US BlackBerries (26 January 2010)

- Nokia sues Apple, says iPhone infringes ten patents (22 October 2009)

One test for patents' validity is whether the company is enforcing them. With Kodak, Sony, Nokia, Motorola, RIM, and others suing one another as a business-as-usual step in licensing negotiations, the value of Apple's defensive patent portfolio at the licensing negotiation table depends in part on Apple's perceived willingness to stand behind the validity of their portfolio and enforce their patents.

Kodak got their judgment. The other pigeons will eventually all come home to roost. In the mobile industry this is how it's always gone -- we're just noticing it because Apple made phones interesting to the general public so now the press is involved.

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How is Google’s argument here different than simply demanding that Apple, Microsoft, Oracle, et al should simply sit back and let Google do whatever it wants with Android, regardless of the patents they hold?

And why should it be different? The fact of the matter is that the idea of Google going after Apple, Microsoft etc for violating Google's patents isn't even an issue. Wanna know why? Because Google's competing on the merit of the product. It's letting the customers make the choice b/w the Microsoft OS and Android.

Whereas if Microsoft had it's way, the customer wouldn't even have a choice. Thats the real difference.

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But what about if the "merit" of the product is based on innovation developed by others?

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Then it's more choices for the customer. Nothing's stopping the original 'innovator' from bring his product to market as well.

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Then what incentive does the original company have in spending time & money into R&D to develop new products when some other company can just rip them off?

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Why do most people or companies start a new business? Because they acquired the patent for it? No. It's because of consumer demand or the possibility of creating a new market, in which case you actually want others to copy you, because they validate your idea. Usually, new product categories sound pretty crazy at first, but by having others copy you, they're basically giving you social proof for your business, and saying you're not crazy for making that type of product.

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> Usually, new product categories sound pretty crazy at first, but by having others copy you, they're basically giving you social proof for your business, and saying you're not crazy for making that type of product.

Ah, of course. Because everyone held off buying the iPad until all these Android devices turned up and validated the whole product category. You're on to something there, you know.

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I don't think there are that many companies out there that can turn a "big iPod touch" into a success, especially not a startup. People are much more willing to give Apple the benefit of the doubt and try their products than they would be with a startup or with most other companies.

This is why I want to laugh when companies like HP and others think they just need their own OS, and then they can be just like Apple. Apple has a lot of other advantages and factors working for them, that the other companies can't easily replicate.

The whole world spins around copying others and putting our own spin on it. 99% is copying, 1% is innovation. Thinking otherwise will not be compatible with reality.

http://vimeo.com/25380454

http://www.techdirt.com/articles/20100912/22380510974/why-im...

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I'm not sure that's as pertinent a question as "do patents stop your ideas from being ripped off?" And as it currently stands, I think the answer to that is no. But I also see companies innovating like mad. Maybe the pace would be even faster with better protections, but I am sceptical.

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The profit to be made between the time the original product launches, and the copies appear. This keeps companies on their toes instead of launching once and milking it for twenty years.

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Do you think Apple would have decided not to make the iPhone if they hadn't been able to patent aspects of it?

Other companies are trying desperately to match the iPhone, and failing. As far as I can tell, their failure to match it has nothing to do with patents.

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What choice? Oh wait, you mean what kind of Ads you would receive :P?

On a serious note though, assume that you have a sandwich shop and your business is of course to sell sandwich (not free) and people flock to you for your tasty sandwiches. Now, if I open a Sandwich shop that gives away free sandwiches and it also tastes pretty much (close to 85%) like your sandwiches (say, i was inspired by your sandwiches, but i don't acknowledge publicly) and make money out of the numerous solicitors selling all kinds of things (you can decline to buy stuff, but they're always in-your-face) that are in and around my shop. Now, why would customers go to you if I sell the same (pretty much) sandwich for free?

Does it mean that I am a philanthropist because I give away free sandwiches to the people? And because I am doing a charity (technically), does it mean that you should not sue me?

That said, patent troll (like Lordsys) is entirely different issue. However, I don't think Apple has a choice here. It is trying to defend its business, and the only legal way it can do it is through these stupid patents.

Edit - Instead of just down-voting, why not elaborate?

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Does it mean that I am a philanthropist because I give away free sandwiches to the people?

No. It does mean that the people who choose to eat at your place are better off. Those who stay at the first shop probably are too, because competition will force them to improve their sandwiches. That's exactly how the free market is supposed to work.

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"anti-Google", "disingenuous", "deep dishonesty", "willfully dishonest". "very twisted", "oblivious", "shill", "clown"

The Engadgetization of HN comments is nearly complete. Get off your high horses, Gruber is exactly right that this screed by Google's counsel is incredibly hypocritical.

Regardless of what you think about patents, Google, Apple, etc. the following argument is total bullshit:

Group A has a right to bid on X. Group B is an evil cartel for bidding on X.

Regardless of what you think about patents, Google, Apple, etc. the following argument is total bullshit:

Group A bids 4 billion. Group B bids 4.5 billion. Group B is paying way beyond what they are really worth! Group B has inflated the value of patents! Group B has created a patent bubble!

Gruber's conclusion is spot on:

"No one other than Nathan Myhrvold and his cronies sees the U.S. patent system as functioning properly, but Google’s hypocrisy here is absurd."

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That argument seems completely fine to me. If you have more funds then you can block a competitor from competing by buying up all the resources. Another example of this is cellular providers in Canada. New spectrum opened up, but somehow the established duopoly managed to by all the new spectrum in Quebec leaving none for the incumbent providers. They are not even using the spectrum, but effectively locked competitors out of the market.

Regarding Gruber, your argument may have merit if it wasn't the case that Gruber never publishes anything seriously negative about Apple, and also never says much good about competitors. Sadly, I knew the article was going to be a negative piece about google the minute I saw it was by Gruber.

People are simply calling it as they see it. There is no real favorite here between Apple and Google that I've ever seen.

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Gruber is fairly critical of Apple at times but generally takes a "I wish Apple would do X but I understand why they're doing Y (or ~X)" position when he does so.

Apple's a company that hasn't missed that often or that big recently though so it's hard for me to judge where he should have gone hugely negative on them in your view.

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MobileMe was a nearly complete failure. The original Apple TV was not a strong product at all. The new iCal and Contacts in Lion are a huge design failure. Their server line was pretty much a failure too.

Those are Apple's biggest failures in recent times. Looking at Gruber's blog archives, I don't think it's a much of a stretch to say that he's a biased writer.

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MobileMe was a modest money maker and ok reviewed product. if you grade on a curve, I guess that's a "complete failure" next to Apple's core products.

The original Apple TV was always seen as a hobby, just as the new, more successful one is. They still sold what 6-7 million of them, made a bundle of money. Compare to Google TV 1.0 it was a roaring success.

Cant vouch for iCal and Contacts in Lion but reviews overall are positive. You seem to be reaching here.

The server line was another well reviewed product and modest money maker.

You seem overall to be grading everything on a huge curve as if anything short of a home run is a massive failure.

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People are simply calling it as they see it.

So is Gruber.

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Isn't your comment and Gruber's entire premise ignoring empirical evidence of how Google and (basically everyone else) uses their patents? I don't see Google rushing to make a cut from iPhone sales, and I don't see Google making more off of WP7 sales than Android sales. (Much the way Apple is wanting to make some ridiculous amount for each of Samsung's sales and the fact that Microsoft gets more revenue from Android licensing than WP7).

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You're right.

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Google can be opposed to patents, but also try to purchase them because at this point in time, if they don't then they will be crushed by others using patents against them.

Also, Gruber seems to think that that it's hypocritical for Google to have bid for the patents and upset that others won them, though he seems to be missing the part where a consortium of competitors are the people that won them, not a single company.

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There's no hypocrisy here. Google had made it clear from the outset they were only bidding for the patent portfolio as a defensive measure. http://googleblog.blogspot.com/2011/04/patents-and-innovatio...

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But what exactly does Google need to defend against, if not actual patents Android actually violates?

This logic confuses me, and kind of undermines his premise. Seems like the same logic would say "Why does this accused criminal need a lawyer, if he did not actually commit a crime?"

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What I think:

It's ok for Apple, Microsoft et al to defend themselves if Android violates their own patents.

It's not ok for Apple, Microsoft et al to defend themselves if Android violates patents they didn't develop.

Also, remember that although Microsoft & Oracle claims that Android violated some of their software patents, Apple claims against Samsung go far beyond that, this analysis by Nilay Patel is pretty good: http://thisismynext.com/2011/04/19/apple-sues-samsung-analys...

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All patents held by companies were bought from someone else. They're just usually paid for with salaries.

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So you want to prevent some poor independent hacker from selling his patents to large companies?

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If the patent system worked correctly, that would be true. But it hands out heaps of trivial patents, so not even that.

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I concur. But it brings an additional question:

Is it right for Google to defend itself with patents they didn't develop? (like for instance those bought from IBM)

In this case I think not.

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The distinction made by Gruber here is between two kinds of companies:

- Apple, MS and similar companies who buy patents and actually use them to make products.

- The Lodsys's of the world that use them as revenue sources and don't actually contribute any value to anyone.

In the blog post, Google is lumping everyone together, whereas Gruber disagrees.

Apple's patents that they've used against HTC and similar are for things that are remarkably unique - more unique than the Amazon 1-click patent and similar. Notably, they're not seeking out patents to use as weapons - it's likely, if not transparently obvious that they purchased the portfolios in question to remove the chance that those patents would be used against them.

I'm no friend of patent law (I think it should be reformed to function in a manner similar to real-estate property law), but I'm thinking that there is more nuance to this debate than "Gruber is a Google Hater".

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Is this unique? http://www.google.comn

That (turning the text of a link into a clickable URL) is precisely one of the patents Apple is asserting against HTC.

If that patent is truly innovative (which it isn't, I'm sure there were web browsers and/or mail readers that did similar things well before the filing date), Google has to worry about the patent situation around Chrome, Mozilla has to worry about the patent situation around Firefox and ...

If Apple wins with such nonsense patents against HTC, wemight as well just shut down the US software industry and send it offshore (like everything else), since there are plenty of jurisdictions that don't recognize these bogus patents.

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This patent thing has to come to a head. Something has to happen.

It's not just big companies that are involved here.

Guys like me. A family man in the northwest just trying to make a living doing pretty obvious things with technology is going to get screwed by all of this eventually.

I develop on Android and it's a massive chunk of my income. If they go down, so do I.

All these games have to stop and something has to be decided. The courts need to look at this, the government needs to look at this, and things need to move swiftly.

I'm about ready to start painting houses. I've never heard one of them complain about getting sued for the way they move their arm up and down when they paint.

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In his quest of defend everything related to Apple, Gruber is probably stepping on a lot of good principles or ideas - like admitting the patent system is broken. I think he made it obvious before, I don't remember in which case exactly, probably the one with Apple's new policy of taxing content distributors, that he would defend anything Apple does, no matter how absurd. This is no different. I know it's become cliche by now, but I think Gruber has become too engulfed in Steve Jobs reality distortion field, and as others have said here, even he might not realize it.

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Since Microsoft, Apple cartel bought the Nortel patents aren't they exactly behaving like patent trolls ( Intellectual Ventures ) in this context? You have to be wilfully ignorant not to see the similarity.

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I would think not having used an acquired patent in offensive litigation is the salient dissimilarity.

One would have to be willfully ignorant not to see that.

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Doesn't everyone expect that the acquired patents are going to be used against Android? Doesn't the makeup of the winning consortium argue for that interpretation?

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Does anyone else feel the word undermine is not appropriate in this quote (due to which, I'm unable to understand the point behind the comparison):

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?

[1] http://dictionary.reference.com/browse/undermine

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First of all, Linux violates 0 patents in my book til Microsoft at least specifies them. Then maybe we can talk about whether or not the present tense "violates" and not "potentially violating" is accurate.

Secondly, even if that is true, does Gruber think Microsoft deserves to win that fight? I mean seriously? If you can develop something on your own time that violates a software patent, that means we need massive patent reform. Not that somebody did something wrong, or that it should be stopped. Making that assumption is unjustifiable and something that should be apologized for.

Google doesn't have a lab with reverse engineers working on "hurting M$". No, they are simply distributing a flavor of Linux. And unlike the other scared/ignorant companies that are signing costly patent deals with Microsoft based on claims and threats of potential litigation, Google actually wants to fight. I think that's pretty respectful.

Software patents are a joke. They leverage the playing field towards the rich and ensconced individuals/corporations and against the hackers who are actually inventing the technologies. It's a sad, depressing joke no one wants to laugh at.

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I found the word very clear. Here, rewritten to use both of the most common definitions of the word:

"It's OK for Google to weaken or impair Microsoft's for-pay licensing business by giving away Android for free, by eroding the foundational concept of an OS being something you pay for; but it's not OK for Microsoft to weaken or impair Google's attempts to give away for free, by eroding the foundational concept of its free-ness[1], an OS that violates patents belonging to Microsoft?"

[1] undermining free as in speech by showing it is encumbered, and undermining free as in beer by licensing the relevant patents for relevant dollars

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The one thing I'll agree on with Google: the patent system is flawed ― too bad this is really the only good point (or excuse, I should say) they're using to defend themselves. Then again, Gruber shouldn't be condoning the validity of software patents in the first place, because they suck.

Aside from that, I think Gruber hit the nail on the head (though his usage of undermine seemed a bit odd and out of place).

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"Aside from that, Mrs. Lincoln, how was the play?"

Once you take away Gruber's presumption that most software patents are valid, the rest of his piece collapses.

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"So if Google had acquired the rights to these patents, that would have been OK."

It's a war. You have to take arms to defend yourself, but it doesn't mean you're happy about it.

Gruber is almost bipolar: his insight on the industry is usually pretty interesting, but he becomes borderline retarded when he starts posting about Apple competitors.

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Sounds to me like what he's trying to say is that using patents isn't such a terrible idea as long as you've actually used it to make money on your own products. I think that's not an unreasonable statement to make, whether or not you agree with it.

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"But what exactly does Google need to defend against, if not actual patents Android actually violates?"

I may be naive but I simply don't understand the concept of transferring the ownership of a patent. If Google buys a patent related to Android then HOORAY! They can use that idea in Android. If Microsoft buys that patent related to Android then HOORAY! Microsoft gets to sue Google.

It seems to me that "violations" are simply "didn't pay enough monies." Why is buying a patent your product violates a bad thing?

and, on a semi-unrelated note, why are patents transferable at all? Shouldn't they only benefit the person who created it? what claim does some arbitrary company dozens of sales down the line have to that patent?

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Also, apparently Microsoft offered Google the chance to join them in bidding for the patents and they declined.

http://daringfireball.net/linked/2011/08/03/interestinger

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Google needs to drop the “but we are the good guys” argument because they simply can't sustain it.

"Don't be evil" is sounding at best schizophrenic and at worst hypocritical.

I'd much rather hear: “Look, we love open source software and we'll use it and contribute to it in every possible way, as long as it doesn't interfere with our business strategy”.

That would be honest and not that bad in fact.

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Could somebody shed some light as to what kind of patents that Android is allegedly violating. I am curious as to whether they are "real" innovations or something akin to Amoazon's 1-click.

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Gruber: "Sour Grapes"

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It's hard to take Gruber seriously when everything he writes distorts reality and commonsense in the sake of representing them in ways that favor Apple Inc and its endeavors.

His thoughts on WebM vs. Apple backed MPEG-LA are equally ridiculous.

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Yeah, he is totally fine with the idea of using HTML5 vs Flash, because "Flash is proprietary and bad", even though Flash was and still is the standard for online video!

But then he turns around and says "why bother with the open WebM when you can use this "standardized" codec that is h.264", even though it's proprietary and patent-encumbered.

Completely opposite positions and double standard on his part. The only common ground between them is that the one's he's supporting are the ones Apple is supporting.

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Meanwhile, in reality:

Let me be clear, though: there is nothing wrong with playing a video in Flash. I mean that seriously, no sarcasm. What there’s something wrong with is requiring Flash Player to play video. That’s the whole point of the HTML5 <video> element: to enable web video without requiring the use of proprietary plugins.

And:

I have nothing against WebM. In fact, prior to this week’s announcement, I thought Chrome had the best HTML5 video policy of any browser: they supported all the relevant codecs. Supporting WebM and H.264 is better than supporting only one or the other, in my book. But if you’re only going to support one, I say support the one that is in wide use, with extensive wide-ranging support from camera makers, mobile playback devices, and online video services.

-- http://daringfireball.net/2011/01/practical_vs_idealistic

This aren't "completely opposite positions". This is consistent pragmatism. I believe you frame it as a contradiction because you see the issue primarily as an ideological one of open vs. closed, with the "open" nature of WebM trumping any utility of h.264. Not everybody sees it that way.

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True. Gruber is at his worst when he discusses patents. I do enjoy his writings otherwise.

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"It's hard to take yanw seriously when everything he writes distorts reality and commonsense in the sake of representing them in ways that favor Google Inc and its endeavors."

It goes both ways. I don't agree with the way software patents currently work and think patent trolls such as Intellectual Ventures are the scum of the Earth, but Gruber has made some valid points here.

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No not really. There's nothing of value in this article.

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Perhaps, I've never instigated attacking posts on Google's competitors I merely react to what I think are unfair attacks.

And yeah, he probably made valid points regarding pixel width in OSX, he's out of his depth discussing patents though.

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When will Apple respond to bad press directly instead of hiding behind this clown?

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What bad press does Apple have to respond to? Google losing a bidding war? Bwuah?

Attack the argument, not the man. Your comment just looks silly.

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All I know is that the lawyers are gonna be making a whole lotta cash from this showdown!

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Hold the presses everyone, Gruber just bashed Google.

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Does anyone else feel like the apple shill is worried that his precious is losing to android? haha... software patents suck... it is bad for apple and google and any other tech company.

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Yes, because with 5.6% of the market share and 56% of the profits Apple is hurting.. lol Get real, Google can only hope to make that amount of money on Android.

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Depends on what you are after. If it is only money (aka Apple) they are really doing great. Their tribe has money and loves to pay (you cant even go in the apple store for less than 30 dollars). If you are trying to spread like a virus... Android wins. Not sure where google is getting money off of it, but android will end up with insane market (but you are right much less money there)

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