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Google’s war against patents

On Wednesday, Google came out strong against Microsoft, Apple, Oracle and other companies, arguing that they are waging “a hostile, organized campaign against Android” by purchasing a large number of “bogus patents,” which can then use in lawsuits against Google.

Google Senior Vice President and Chief Legal Officer David Drummond explains their side of the story on the company blog:

“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; seeking $15 licensing fees for every Android device; attempting to make it more expensive for phone manufacturers to license Android (which we provide free of charge) than Windows Phone 7; and even suing Barnes & Noble, HTC, Motorola, and Samsung. Patents were meant to encourage innovation, but lately they are being used as a weapon to stop it.

“A smartphone might involve as many as 250,000 (largely questionable) patent claims, and our competitors want to impose a “tax” for these dubious patents that makes Android devices more expensive for consumers. They want to make it harder for manufacturers to sell Android devices. Instead of competing by building new features or devices, they are fighting through litigation.

“This anti-competitive strategy is also escalating the cost of patents way beyond what they’re really worth. The winning $4.5 billion for Nortel’s patent portfolio was nearly five times larger than the pre-auction estimate of $1 billion. 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.”

Microsoft quickly fired back, saying that they had tried to team up with Google to bid on the patents, but Google declined the offer.

“Google says we bought Novell patents to keep them from Google. Really? We asked them to bid jointly with us. They said no,” tweeted Microsoft General Counsel Brad Smith

TechCrunch reports that Microsoft Head of Communications Frank Shaw added to the return fire with a tweet that revealed another Google lawyer, Kent Walker, had declined Microsoft’s request to team up on a patent bid back in October 2010.

The revelation that Microsoft was, in fact, trying to work together with Google, not against it, has led many to argue that Google is just acting like a sore loser.

“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,” writes Daring Fireball’s John Gruber (a well-known Apple enthusiast). “It’s not ‘patents’ that are attacking Android. It’s competing companies whose patents Google has violated — and whose business Android undermines — who are attacking Android.”

While Google may have undermined its own argument by saying that Microsoft was waging an attack when it had evidently tried to join forces, some contend that Google didn’t go nearly far enough. Rather than fight against specific patents, some say the company should come out against software patents entirely, a stance supported by many computer programmers.

“Google is one of the world’s largest and most prominent victims of our innovation-taxing patent system, so lobbying for better patent laws seems like an obvious way to fight back,” writes Timothy Lee in Forbes.

As Lee points out, Congress is currently working on patent reform legislation with the America Invents Act. But this bill, says Lee,  only offers “modest procedural changes,” and will do little to prevent “the kind of abusive litigation that’s now plaguing Android.”

Google is far from the first organization to point out how broken the US patent system is, especially when it comes to software patents.

Last month, both NPR and the Economist published in-depth reports that offer a wealth of evidence that proves just how broken the US patent system is. Whether or not Google’s crusade will help push forth real change in this area — or even if Google wants real change — remains to be seen.

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