Yesterday, Google Chief Legal Officer David Drummond blogged about the patents arms race that has major tech companies building gigantic portfolios of pricey patents, then using them to launch lawsuits or extract licensing fees (or, sometimes, to defend themselves against other companies launching lawsuits or extracting licensing fees). He called his post “When patents attack Android,” and accused Google competitors such as Apple and Microsoft of conspiring to buy patents and use them to damage Android in the marketplace.
And then something unexpected happened: Microsoft released an e-mail from a Google executive which seemed to prove that Microsoft had invited Google to join it in bidding on some of the patents in question. Google declined to participate. Some conspiracy!
Drummond’s post has accomplished something which you might have thought was impossible: it’s leading to blogosphere coverage which largely sides with the patent aggressors. And while I agree with at least part of the gist of the post–patents on questionable “inventions” are stifling innovation rather than aiding it–the post doesn’t make a convincing case that Google is being persecuted.
1. Drummond: “Microsoft and Apple have always been at each other’s throats, so when they get into bed together you have to start wondering what’s going on.” Sure, Microsoft vs. Apple is the tech world’s most legendary ongoing battle. But the companies’ history of working together when it serves both their interests is just as long. Remember this?
2. “But Android’s success has yielded something else: a hostile, organized campaign against Android by Microsoft, Oracle, Apple and other companies, waged through bogus patents.” Which patents are bogus, and why? We don’t need a full accounting, but examples would have helped. (Google has vast quantities of patents itself, so I presume it’s not opposed to patents, period.)
Also: nothing inherently wrong with competition between big companies being hostile. It’s not always genteel and cheerful, and that’s okay. Even necessary.
3. “Instead of competing by building new features or devices, they are fighting through litigation.” What’s with the “Instead of?” Apple is responsible for more of the smartphone biz’s influential new features than any other single company. Its devices are the most iconic ones on the planet. Microsoft’s Windows Phone 7 may not have much traction, but it’s clever and available on a bunch of handsets. Both companies are building and fighting.
4. “Fortunately, the law frowns on the accumulation of dubious patents for anti-competitive means — which means these deals are likely to draw regulatory scrutiny, and this patent bubble will pop.” I hope so! And if it does, Google doesn’t have a long-term problem here.
5. “Unless we act, consumers could face rising costs for Android devices — and fewer choices for their next phone.” I like cheap phones as much as the next gadget nerd. But I don’t have any fundamental problems with the idea of companies using patents to preserve a competitive edge and prevent the value of inventions from immediately dwindling. It’s when the patents aren’t really for inventions that we have a problem. And Google’s case would be a lot stronger if it demonstrated the bogosity of the patents it says are bogus.
As Paul Thurrott and others have pointed out, Android has gained so much mobile market share in so little time at least in part because Google gives it away to handset manufacturers that were used to paying companies such as Microsoft for software. Google can afford to give away a mobile operating system because it utterly dominates the search-engine advertising business. The company knows how to play hardball. And if it’s going to blog about all this–and I think it should–it would be smart for it to explain just what makes Microsoft and Apple’s actions unethical rather than just very, very aggressive.
[UPDATE: Google has amended the original blog post with a response to Microsoft's leaked Google e-mail. It's probably just me being dense, but I don't understand Google's brief explanation of why it chose not to join Microsoft's bid for the patents in question.]