posted by Thom Holwerda on Thu 4th Aug 2011 21:38 UTC
IconThe Google-Microsoft patent war of words is continuing. Yesterday, Google (rightfully so, in my book) accused Apple, Microsoft, and Oracle partaking in an organised patent attack against Android, instead of competing on merit, claiming that they bought up Novell's and Nortel's patents solely to attack Android and its device makers. Microsoft struck back, claiming Google was offered to join in on the bids for the Novell patents, but rejected the offer. Google has now responded to this accusation - and to make matters even more confusing, Microsoft responded back. A public shouting match between two powerful parties? Count me in!

So, Microsoft's response to Google's blog post yesterday was quite fascinating. Google stated that Microsoft's consortium bought the Novell patents to assert them against Android. Brad Smith, Microsoft's general counsel, countered this in a tweet. "Google says we bought Novell patents to keep them from Google. Really? We asked them to bid jointly with us. They said no," he wrote. Frank Shaw, another Microsoft employee, followed up with the email in which Google declined the offer.

I appended this response to the article yesterday, but I didn't have the time to dive into it. My first thought, though, was simple: of course Google declined that offer! Such a patent deal would only cover Google, and not downstream. In other words, such a patent purchase would cost a lot of money, but it wouldn't do anything to help HTC, Motorola, Samsung, and so on. Since most lawsuits (except Oracle) focus on the device makers, it would be an entirely empty deal, doing very little to protect Android.

As it turns out, I, and many other smart cookies with me, were right. "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," writes David Drummond, senior vice president and chief legal officer at Google, "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," he continues, "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."

Interestingly, Google has the US Department of Justice on its side in this one, as the DoJ raised antitrust concerns over CPTN's (Apple, Microsoft, Oracle) purchase of the Novell patents, and forced them to change the patent deal to indemnify the open source community (by handing over the patents to the Open Invention Network). Of course, the Apple-Microsoft-Oracle cartel couldn't drop the deal because of the DoJ's demands, since that would've instantly proven they only bought them for offensive purposes. This means that thanks to the DoJ, this cartel has just spent million and millions on a fairly useless patent war chest.

Shaw, meanwhile, has already responded to the above, but Shaw is clearly running out of steam after yesterday's 15 minutes of fame. "Let's look at what Google does not dispute in their reply," Shaw writes on Twitter, "We offered Google the opportunity to bid with us to buy the Novell patents; they said no. Why? BECAUSE they wanted to buy something that they could use to assert against someone else. SO partnering with others & reducing patent liability across industry is not something they wanted to help do."

A rather weak response, since if history is anything to go by, the safe assumption is that Google is not going to use any patents aggressively. The company has never filed a patent lawsuit - not even a defensive one - unlike Apple, Microsoft, and Oracle. Especially Apple and Microsoft are clear aggressors against Android, and Oracle is nothing but a proxy for Redmond and Cupertino. Larry Ellison, is, after all, one of Jobs' best friends.

Heck, contrary to popular belief, the infamous PageRank patent the anti-Android crowd keeps drumming up isn't even owned by Google. It's owned by Stanford University, and licensed by Google. The PageRank patent keeps being used as some sort of golden proof that Google loves software patents too, and that therefore, they're hypocrites. The truth is though, not only has Google never threatened to sue anyone with the PageRank patent - even if they wanted to, they couldn't, because they don't own it.

Like I said yesterday, I do not like Google (I don't own and never have owned an Android device - heck, I don't even use Google Search). As a consumer, you should always distrust companies because their interests are diametrically opposed to yours. However, when it comes to software patents, and the importance of competition, I happen to be in Google's camp. My cheering for Google is based on the company's dislike for software patents - whereas many people simply hate Google because they are a major threat to Apple.

Luckily for us, the DoJ is investigating both the Novell and Nortel deals for antitrust issues, and the Canadian authorities are looking into the Nortel deal as well. With a bit of luck, the Nortel patents, too, will be given to the OIN. If that happens, Google will have scored a major win - for the better of competition and innovation in the market place.

I'll gladly take a few angry comments from Apple fanatics for that one. You know something's afoot when Gruber and Thurrot join hands to skip through the fields.

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