Why Google Hates Patents

on August 5, 2011
Reading Time: 4 minutes

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.