Google stumbles in anti-patent arguments

Empassioned plea against Android litigation undercut by fact-checking?

Yesterday afternoon, when Google's Sr. VP and Chief Legal Officer David Drummond spoke out against all of the legal attacks being leveled at Google's Android operating system, there was a glimmer of hope amongst some industry observers that finally there would be some action by someone with some wherewithal to reform the entire software patent infrastructure.

It was, really, a silly hope: bigger companies than Google have called for US patent reform (Microsoft and IBM, to name two), and there hasn't been much progress made thus far. Given that such reform would come from the US Congress, which currently seems incapable of tying its collective shoes without paralyzing themselves with partisan screeching, it really seemed like a pipe dream.

Still, sometimes it takes more than one hammer blow to knock down a wall, and for my part, it was encouraging to see another swing at the absurdity of software patents, which continually stifle innovation in the technology sector. (Not all innovation, of course: lawyers are very creative when coming up with new ways of squeezing money out of companies.)

Unfortunately, the swing of the sledgehammer on the barrier of software patents actually turned out to be a tiny little rock hammer, thanks to what appears to be selective memory on the part of Drummond or poor communication within the Google legal department.

In his blog post, Drummond specifically accused Microsoft and other companies of banding together to buy the former Novell and Nortel patents in order to gang up on Google.

"They're doing this by banding together to acquire Novell's old patents (the 'CPTN' group including Microsoft and Apple) and Nortel's old patents (the 'Rockstar' group including Microsoft and Apple), to make sure Google didn't get them," Drummond wrote.

That's a theory that many around the industry have widely accepted to be plausible. We're not the only ones; the US Department of Justice and Germany's Federal Cartel Office are still investigating the purchase of Novell's patents by the CPTN holding company, even after the DoJ compelled the members of that consortium to make sure they didn't use those patents to attack Linux and other open source software through a variety of legal steps. As Smith mentions, CPTN members include Microsoft and Apple, as well as Oracle and EMC Corp.

And--almost--Google.

According to a tweet from Microsoft General Counsel Brad Smith after the Drummond's blog was posted, "Google says we bought Novell patents to keep them from Google. Really? We asked them to bid jointly with us. They said no."

Conspiracy theorists might accuse Smith of just making this stuff up to make Google look bad, but there's a big difference between spinning an argument in a certain direction and outright lying. But, just to make sure Google couldn't evade this one, Microsoft's Head of Communications Frank Shaw tweeted "Free advice for David Drummond--next time check with Kent Walker before you blog. :)"

Shaw's tweet, which referred to Google Sr. VP and General Counsel Walker, contains a link to an image of an October 28, 2010 e-mail from Walker to Smith that seems to refer to the Novell patent deal:

"Brad –

"Sorry for the delay in getting back to you — I came down with a 24-hour bug on the way back from San Antonio. After talking with people here, it sounds as though for various reasons a joint bid wouldn't be advisable for us on this one. But I appreciate your flagging it, and we're open to discussing other similar opportunities in the future.

"I hope the rest of your travels go well, and I look forward to seeing you again soon.

"– Kent"

If this e-mail is actually referring to the Novell/CPTN deal and not some joint corporate counsel reunion/barbecue, it would drastically undercut Drummond's argument that the CPTN companies were using the Novell patents to smack Google around. In fact, it lends credence to the other, less voiced theory that was running around last November when the terms of the Attachmate/CPTN acquisition of Novell was announced: that CPTN was picking up the Novell patents to prevent them from falling into the hands of someone really dangerous... like an east Texas intellectual property firm.

The sad thing is, Google's legal office is going to look pretty dumb after making such a public faux pas, and it's going to undermine the broader argument that software patents are strangling the growth of technology in general and keeping what innovation there is in the hands of the corporations that can afford the legal battles to protect themselves.

Is there a concerted effort to kill Android through litigation? Perhaps not as concerted as Google would like to think, but there is little doubt that with Android holding nearly 50 percent of the smartphone market share, there are a lot of companies that would love to see the growth of Android slowed, stopped, or even reversed.

Going off half-cocked and ill-prepared with arguments that can come back to weaken the fight against software patents is just plain asinine. Patent reform is important, Google. Pay attention.

Update: Apparently I could follow my own advice about going off half-cocked. Drummond has updated the original blog entry to respond to Smith's allegations. It seems Google was asked to join the CPTN group, and they did decline. But according to Drummond, there was a deliberate reason for not joining the Novell patent party:

"It's not surprising that Microsoft would want to divert attention by pushing a false 'gotcha!' while failing to address the substance of the issues we raised. If you think about it, it's obvious why we turned down Microsoft’s offer. Microsoft's objective has been to keep from Google and Android device-makers any patents that might be used to defend against their attacks. A joint acquisition of the Novell patents that gave all parties a license would have eliminated any protection these patents could offer to Android against attacks from Microsoft and its bidding partners. Making sure that we would be unable to assert these patents to defend Android--and having us pay for the privilege--must have seemed like an ingenious strategy to them. We didn't fall for it."

The decision to decline joining CPTN, then, was to avoid paying for patents that Google would never have been able to use for defense if they'd been part of the CPTN consortium. It was a gamble that seem to have worked, given the DoJ's intervention in the patent acquisition. One wonders what would have happened if the DoJ hadn't come into the deal.

So, Google is paying attention, despite initial appearances. That's good to know, because the war ahead is going to be very messy indeed.

Read more of Brian Proffitt's Open for Discussion blog and follow the latest IT news at ITworld. Follow Brian on Twitter at @TheTechScribe. For the latest IT news, analysis and how-tos, follow ITworld on Twitter and Facebook.

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