Why Google Hates Patents

by Tim Bajarin   |   August 5th, 2011

In a rather testy blog yesterday, Google’s Chief Legal Council David Drummond lamented the fact that Android is under attack from competitors who are using a patent war to thwart Androids growth.

Mr. Drummond calls these patents that attack Android “bogus” and suggests that Apple, Microsoft, Oracle and others are ganging up to keep Android from being competitive and impacting its growth.

He especially calls out Apple and Microsoft’s purchase of Nortel’s patents and suggests that while normally Apple and Microsoft are at “each others throats” he believes that something sinister is going on. But Mr. Drummond does not know Apple and Microsoft’s history. In 1997, Apple and Microsoft entered a major cross licensing deal that spans a great deal of technologies, especially user interface issues. And over the years, behind the scenes, they’ve expanded their cross licensing deals with an eye on making sure that they kept up with the changing technologies that were behind their original deal. Although the Nortel patents were a high profile case, many of these patents actually were very much in line with their quest to keep their original cross licensing deals up-to-date.

Ironically, Microsoft actually asked Google to bid with them and they refused.

I also found it interesting that Mr. Drummond was pleased that federal regulators are “ looking into” whether Microsoft and Apple acquired the Nortel patents for anti-competitive means.” Given what I stated above, Apple and Microsoft will just show them the history of their cross licensing deals and this point will be mute. By the way, if I were Google I would keep as far away from prodding federal regulators on any issue given the fact that they are also under major federal anti-trust scrutiny

Also if Google is so opposed to patents, then why did they shell out $100 million for patents from IBM? This seems contradictory to their view that patents are bogus. An interesting aside here is that none of these patents from IBM will help them ward off Apple. These IBM patents are mostly related to semiconductors and servers and Apple already has license to most of these from their original IBM/PPC partnership created during the mid 1990’s.

Now, I understand that Drummond’s is just doing his job. In fact, Google’s management has a fiduciary responsibility to defend Android just as Steve Jobs and team have a similar responsibility for defending their patents. However, I believe there is really more of an ideological issue in play and represents Google’s more Open Source approach to life that feels that all technology should be free for use by all. Versus Apple’s strong view that their IP is the result of serious investment and hard work and needs to be protected through the legal patent process to, as Steve Jobs has said, “keep people from stealing” their creative innovations.

I like what Daring Fireball’s John Gruber asks in his post on the subject:

“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?”

The other thing in play is that Google has always touted the fact that Android is free. But it is clear that if Oracle wins their suit against Google and Android’s use of Java , Oracle plans to charge each Android vendor $15.00 per license. And Microsoft has already gotten HTC to pony up at least $5.00 per HTC device that uses Android to cover Microsoft’s patents used in Android. In Apple’s case, if they win, they won’t even consider licensing that piece of the technology to anyone. So that part of Android that would be in violation of any of Apple’s patents would mean that Google and their licensee’s would have to find a work around and that could be costly to Google and every Android licensee.

And this takes a big bite out of Google’s argument that Android is free and would make any future licensee’s think hard about using Android if there are potentially sliding costs involved to cover any other patent claims that could pop up over time. No wonder they are bashing patents. They fear their impact on what has to be one of their big cash cows where Android is given out freely and they get the add revenues tied to it.

We have suggested to our clients that license Android from Google to begin factoring in at least $20.00 for a possible upcoming Android license fee in any future products. And we have warned them that if Oracle wins, they could try and collect that $15.00 for any Android device already shipped. This is obviously still a legal issue and we don’t know for sure how it will play out. But it would be foolish for any Android licensee not to be prepared for what they have to view as a worst case scenario if the legal battle goes in favor of Oracle and others challenging Androids use of their patents.

And don’t think that Apple, Oracle or Microsoft will back down on this issue. They know the stakes are high and will keep pressure on Google through the legal channels until it is resolved one way or another. It will be great theater watching these tech giants go after each other in the coming months.

Tim Bajarin

Tim Bajarin is the President of Creative Strategies, Inc. He is recognized as one of the leading industry consultants, analysts and futurists covering the field of personal computers and consumer technology. Mr. Bajarin has been with Creative Strategies since 1981 and has served as a consultant to most of the leading hardware and software vendors in the industry including IBM, Apple, Xerox, Compaq, Dell, AT&T, Microsoft, Polaroid, Lotus, Epson, Toshiba and numerous others.
  • Anonymous

    I wish these lawyers wouldn’t use obscure technical terms like “bogus.”

    People like me (non-lawyer) might get confused and think he means, “not validly issued.” Or perhaps, “not the result of millions of dollars of work.” Or perhaps, that the Constitution never meant to tell the government to create patents as short-term monopolies, to let inventors reap rewards from their work.

    Maybe he could help by using the Little Red Hen fairy tale about the hard worker who couldn’t find help to plant, weed, harvest or bake the grain, but was besieged by the Lazy dog and cat and other animals when it was time to enjoy all her hard work.

    Still, I have a hard time in understanding why Google thinks the Little Red Hen’s work is “bogus.” After all, the suits that competitors actually filed are that Google looked hard and long at Sun’s innovative work, decided they needed it, but couldn’t be troubled to innovate a new approach, so simply took it. Or that Samsung, confronted with the simple UI issue of scrolling to the end of a list in Android, decided that Apple’s “rubber band” approach was too good to let just Apple have, despite there being dozens of other approaches used by other systems. These sound more like mugging the Little Red Hen.

    Maybe “bogus” means the patent that Google had to license to be able to make any money off AdWords, because no matter how smart their page rank idea, they couldn’t make money off it without auctioning off placement. Or the patents that cover GSM and CDMA. Or LTE (part of the Nortel pool), that every phone manufacturer will have to license on a FRAND (Fair, Reasonable and Non-Discriminatory) basis if they want to offer 4G service. Now I think I’m getting warm: “bogus” means “Google has to pay somebody else for their work.”

    Why didn’t he just say so?

  • Anonymous

    Google = EVIL.

    Google = wolf in sheep’s clothing.