A Brief Explanation of Microsoft's Anti-Google Patent FUD | Hacker News Reader

A Brief Explanation of Microsoft's Anti-Google Patent FUD

groklaw.net

138 pointswglb113 comments

"If Google doesn't have enough money to buy up patents, who does? Twice it has tried and been outbid, not by a single competitor but by a group of them joining together. In fact, that's where, to me, the real antitrust issue surfaces, that by joining together to squeeze Google out of two auctions, Google's competitors appear to have been plotting against it in ways that really must invite scrutiny, which, by all reports is now happening again."

I think this is the main point of this story and this whole issue, and that's what Google wanted to show us. If Google can't even get patents to protect themselves, because all the others keep banding together and not letting them win any auction, then something is very wrong here.

You may say, yeah but then why doesn't Android have its own patents? Well, I don't think it would've been possible for them to get that many patents in this short amount of time, and I don't think it would've been possible for Apple either.

Look at Apple, they are winning with patents not related to smartphones. If Apple wasn't this 30 year old computer company, their patent chest would've probably been close to zero, and a lot of these companies would've come after them, too.

Here's a look at the mobile patents everyone has. You can see Google is not in top 10, but take a closer look - neither is Apple.

http://www.businessweek.com/magazine/the-biggest-ip-war-ches...

So what would've happened if Apple didn't have any of their computers patents from before, and they actually were a new smartphone company? They would've probably gotten sued into oblivion as well, especially since they seem to make a lot of money from iPhones. Their handful of mobile patents would've meant nothing in the face of the mobile patent war chest of Nokia, Samsung, Microsoft, HP(Palm patents) and Motorola.

You can't create something as complex as a smartphone and a smartphone OS today, without infringing a ton of patents. So if a new mobile company can be crushed because others have more patents than them, then what does that say about the patent system? It says the patent system does nothing to protect and encourage innovation, but it lets the big incumbent companies crush the new guys with their large patent war chests. It's bad enough when it's just one of them, it's much worse when they all join together against that company.

If you can't build anything complex, without being a 10+ year old company (in that market) and not having thousands of patents - then something is very wrong with the patent system that was supposed to help start-ups and innovation. I think they all know this, but since they know they have the upper hand with current broken system, they will fight to maintain the current system.

Patents are not used for crushing other companies. They are used for getting a fair recompensation for the IP you have created. That usually means licensing fees. Apple has acquired several licenses for their use in iOS (well-known example: h264) and, guess what, they are not whining about it.

Acquiring "bogus" patents in order to defend from legitimate ones you infringe upon is plainly evil as it twists the whole patent system (and is one of the reasons why our current patent system is broken). Incidentally, that's what Google planned to do. That doesn't automatically mean they are now an evil corporation, but it's not fair to describe the whole scheme as righteous. It's just business.

I dont understand how you can tell bogus patents from legitimate ones? legally speaking, they all look the same to me. could you give me a run down on the differences?

I trust Google when they say that patents they wanted to buy from Novell and Nortel were "bogus".

hmm? they cant be bogus from a legal POV, or they would be no good for defence.

Maybe google just meant that they didn't like them very much?

Even bogus patents are valuable from a legal POV. The cost of defending oneself from a bogus patent is the same as the cost of defending oneself from a valid patent, and that cost is very high, in the millions of dollars and years of wasted time.

Patents are being used as blackmail or a protection racket on the offense and as a MAD on defense. They are effective at both simply because the cost of litigation to defend against or invalidate even bogus patents is insanely high.

This is what makes patent trolls so frustrating. There is no MAD defense since they make nothing, and thus have no exposure to countersuits. On the other hand, the cost of settling is an order of magnitude less than the cost of defeating against them, bogus or not, so the logical response is to "roll over" and pay the license fee. Unfortunately, that just encourages them.

No, they did not say the Novell and Nortell patents were bogus. They said most of the 250,000 patents that a typical smart phone "infringes on" are bogus.

1. The number 250,000 is clearly a made up number, but the real number is in that ballpark (order of magnitude).

2. The Novell patents numbered ~800, a very small fraction of 250,000.

3. The Nortel patents numbered ~6000, still a small fraction of 250,000.

While some of the Novell and Nortel patents likely are bogus, as a whole they are very likely to be higher quality than the other 240,000 smart phone-threatening patents out there.

You're right. Google (in David Drummond words) called these patents "dubious", not "bogus": http://googleblog.blogspot.com/2011/08/when-patents-attack-a...

""" 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. """

> Patents are not used for crushing other companies. They are used for getting a fair recompensation for the IP you have created.

That's the idea, but not the practice. Nathan Myrhvold comes to mind.

Interesting link...

#4, #6, #8 and #9 are Open Handset Alliance members. I'm surprised they don't use their IP collectively to protect the platform.

>"If Google can't even get patents to protect themselves, because all the others keep banding together and not letting them win any auction, then something is very wrong here."

There may be more than one thing wrong, and one of those things is Google may not be appropriately organized to operate in some of the markets it has chosen to enter - e.g. the mobile phone industry. Their corporate strategy for the search and advertising services upon which the company was built is centered around trade secrets - and that makes a lot of sense given the sausage factory model upon which they have built those services.

Unfortunately for Google, telecommunications doesn't work that way and never has - that's why Nortel had such a big patent portfolio and why Bell Labs did things like patent Shockley's work on the transistor. This is why it takes longer for more mature companies to bring competitive products to a new market segment - e.g. HP felt it prudent to acquire WebOS before head to head competition with the iPad and Microsoft's WP7 doesn't look and feel like iOS.

In a nutshell, Google's problem is that in the telecommunications industry, they did not innovate through a traditional R&D process. Instead, they appear to have rushed the development of Android without proper due diligence in order to be first to market with (operational and technical merits of Android aside) what could be called an "iPhone knockoff". Now that lack of due diligence is coming back to bite them.

<speculation>Could it be that senior Google leadership's fascination with the Sidekick which led to Android lead developer Andy Rubin's being brought onboard led to the damn the torpedoes approach to IP surrounding Android? And could it be that the patents upon which Microsoft's license strategy for Android is base came from their acquisition of Rubin's former startup, Danger, which he left in order to found Android? </speculation>

What should they have done differently? Wait 10 years until they amass their own patent portfolio? Android could have been less similar to iPhone, but up against tens of thousands of bogus patents, would that really make a difference? Anything that was competitive would have provoked an attack.

Frankly, it should be ok to enter the market the way Google did.

Irrespective of should or shouldn't, it isn't. And Google knows it now, and should have known it then. They could have licensed the relevant patents - after all, that appears to be what Apple did in the case of Loadsys and the reason they are not being sued, and it appears to be what Microsoft did with portions of the Nortel portfolio which is why they were concerned enough to participate in its purchase.

With Android Google stepped into a mature market for the first time and appears to have committed rookie errors - it's not the stuff in the Nortel or Novell portfolios which is generating income for Microsoft - and a lot of Microsoft's patents were created through old fashioned in-house R&D - exactly the sort of innovation which should be protected.

<cynical_speculation>It may have been in Google's interest to turn Andorid into Open Source in October of 2008 due to the liability incurred when Microsoft acquired Danger's patent portfolio earlier in the year. Particularly in light of Google's antipatent corporate culture and Andy Rubin's role in creating Google's phone software.</cynical_speculation>

...a lot of Microsoft's patents were created through old fashioned in-house R&D - exactly the sort of innovation which should be protected.

Only if that "innovation" is actually novel, non-obvious, specific, and useful, and certainly not for 20 years (roughly 13 generations in tech years).

It may have been in Google's interest to turn Andorid into Open Source in October of 2008 due to the liability incurred when Microsoft acquired Danger's patent portfolio earlier in the year.

If Android was always based on the Linux kernel, then they probably had an open source plan from the beginning.

Edit: With Android Google stepped into a mature market for the first time and appears to have committed rookie errors

This sounds like code for "Google stepped into our territory and didn't pay its protection money."

Well I, for one, am glad that Google recklessly does business in ways that they should have every right to, rather than quietly submitting to shakedowns and bullying. If they are willing to get nailed to a cross to spread awareness of these problems, kudos to them.

...one of those things is Google may not be appropriately organized to operate in some of the markets it has chosen to enter...

Uh, Google is organized enough to create a profitable OS which well on the way to becoming the dominant smart phone OS in the world.

"Appropriately" here would mean that "organized to join the patent mafia"?

There may be more than one thing wrong, and one of those things is Google may not be appropriately organized to operate in some of the markets it has chosen to enter - e.g. the mobile phone industry.

This really irks anyone who, like me, believes that the only limitations on a tech company should be from the laws of physics, the current state of technology, and basic ethics (e.g. don't blatantly rip off competitors).

Instead, they appear to have rushed the development of Android without proper due diligence in order to be first to market with (operational and technical merits of Android aside) what could be called an "iPhone knockoff".

Android was under development years before the iPhone was announced. Google bought Android before iPhone development started. The Openmoko project was also announced before the iPhone was announced. The iPhone is simply a single (very good) implementation of an idea that had been brewing in the mind of the Technium.

Look at Apple, they are winning with patents not related to smartphones.

I am tired of this straight out lie. See this article:

http://thisismynext.com/2011/04/19/apple-sues-samsung-analys...

Lets look at what Apple is using against Samsung:

Trade dress infringement under 15 U.S.C. § 1125 and Federal trade dress infringement under 15 U.S.C. § 1114 -- both of these are directly related to the physical design of the iPhone and iPad.

Trademare infringement on logos: •No. 3,886,196 is the iOS phone app icon. •No. 3,889,642 is the iOS messaging app icon. •No. 3,886,200 is the iOS photos app icon. •No. 3,889,685 is the iOS settings app icon. •No. 3,886,169 is the iOS notes app icon. • No. 3,886,197 is the iOS contacts icon. •Pending No. 85/041,463 is the iTunes icon, which is a riff on U.S. Registration No. 2,935,038, the desktop iTunes logo.

All of those are iOS logos, except an iTunes logo.

Now you might be saying, those aren't patents. True. So lets look at the patents:

D627,790: Graphical User Interface For a Display Screen or Portion Thereof -- filing date: 2007. It's a design patent for their home screen on iOS

D602,016: Electronic Device -- filing date: 2010. This is the design of the shell of the 3g/3gs.

#D618,677: Electronic Device -- filing date: 2008. This is the design of screen and buttons of the 3g/3gs.

Patent #6,493,002: Method and Apparatus for Displaying and Accessing Control and Status Information in a Computer System -- filed 1997. This is really the only patent used against Samsung that is a direct result of their work on MacOS, rather than iOS. I'd argue that this is the only patent in support of your thesis.

Patent #7,469,381: List Scrolling and Document Translation, Scaling and Rotation on a Touch-Screen Display -- filing date: 2003. One of the first patents presumed to be part of their iOS portfolio.

Patent #7,669,134: Method and Apparatus For Displaying Information During An Instant Messaging Session -- filed 2003, although not strictly an iOS patent.

Patent #7,812,828: Ellipse Fitting For Multi-Touch Surfaces -- filed 2007. A very iPhone focused patent.

Patent #7,844,915: Application programming interfaces for scrolling operations -- filed 2007. This is about user feedback during gesture based scrolling operations.

Patent #7,853,891: Method and apparatus for displaying a window for a user interface -- filed 2008. This is related to their iOS window management.

Patent #7,863,533: Cantilevered push button having multiple contacts and fulcrums -- filed in 2008. This is a utility patent on their volume rocker in the 3g/3gs.

My point? The VAST majority of the claims against Samsung are directly smartphone related. The VAST majority a direct result of their work on the iPhone.

As I've noted in other posts, Jobs telegraphed his intention back in 2007 at the iPhone unveiling. See http://www.engadget.com/2007/01/09/live-from-macworld-2007-s.... Quoted from Engadget, but I'm sure paraphrased from Jobs, "So let's not use a stylus, we're going to use the best pointing device in the world -- our fingers. We have invented a new technology called multi-touch. It works like magic, you don't need a stylus, far more accurate than any interface ever shipped, it ignores touches, mutli-finger gestures, and BOY have we patented it!"

There's no reason why Android shouldn't have built up similar IP protection in this time. This is why I say whoever ran their IP strategy should be shown the door. This is a firing offense to find yourself in a position where the only way to protect yourself is not to assert your own IP, but to have to resort to buying IP you didn't create.

You gotta love the downvotes, with no actual argument against it. Heck, I'd even love a post to show that I'm violating some HN ettiquette (maybe there's ettiquette on HN now that its frowned upon trying to use data to back up your claims?). I suspect this has more to do with ideology/fanboyism than actual content, but I'd love to be proven wrong.

You don't seem to understand. Apple is, by definition, a patent troll. Therefore, whatever it is that they are doing is, by definition, patent trolling. Hope that clears things up.

I would have thought "patent troll" typically describes patent owners who produce no actual products, and only hold patents with the intention of extracting money from others. Apple clearly does produce actual products.

Too subtle, I guess.

I Vote down poorly formatted walls of text, regardless of contents. If I can't read it without my eyes bleeding, then it isn't any use to me.

Most important is visually indicating in some fashion what text you are quoting and which text you have written yourself.

http://news.ycombinator.com/formatdoc

actually if you look at the patents (not the trademark claims), they are not "mobile". Touchscreen != mobile. IM != mobile. Etc.

From your first post: There's no reason why Android shouldn't have built up similar IP protection in this time. This is why I say whoever ran their IP strategy should be shown the door. This is a firing offense to find yourself in a position where the only way to protect yourself is not to assert your own IP, but to have to resort to buying IP you didn't create.

This is one of the many things that I (and probably many others) find fundamentally broken with the patent system. If I'm creating my own mobile operating system from the ground up, I shouldn't have to patent anything if I don't want to. Actual innovation comes in the form of lines of code, not numbers of patents. "IP" as you put it is orthogonal to the actual productive work of a company.

Patents, in my view, should be used strictly to prevent a competitor from producing a direct ripoff of a highly specific invention.

"... find yourself in a position where the only way to protect yourself is not to assert your own IP, but to have to resort to buying IP you didn't create."

True to a point. But isn't it telling that Apple had to resort to buying IP it didn't create? What does that tell you?

It's interesting how people are choosing to first pick what company they want to be right, and then bending things to suit their desired reality.

Why can't people just say - Here's a situation and a company that I think is the Do'est No'est Evil'est company of all time is being a sore loser.

Google bid on the patents and it lost. It's a bit ridiculous to now claim some sort of divine right to be above patent law.

Also, FYI, google has a patent on their doodles. It's the height of hypocrisy to claim that patents for telecom technology aren't fair and at the same time patent a set of doodles.

there's a line between holding patents for (ostensibly) defensive purposes and actively using them for litigation against your competitors. The article that you didn't bother to read makes this point somewhere in the middle.

I'm curious as to what Google's history of active patent litigation has been. A lot has been said about them wanting to hold patents for defensive purposes and I wonder how that holds up against their legal history as I have no idea myself.

Rtfa. The main premise is that the issue Google is raising is one concerning antitrust law, not patent law.

Im not choosing the company I want to be right, I am choosing the opinion. Any company that argues against software patents is on my side. Any company that argues for them, or uses them offensively, is on the other side.

When Microsoft argued against patents, they were on my side. When they use them against other companies, they are on the other side.

Honestly, I dont care a whit what the company is, software patents are bad and if they want me on their side, they will say so, loudly.

Why do you so easily let Microsoft switch sides?

because I desperately need allies.

This time Microsoft was on your side, as they've banded with several other companies in order to buy Novell (and Nortel) patents cheaply, making sure that patent trolls won't acquire the patents and minimalising their effect on the industry (assuming that the new patents would then be only used for "defense", as there is no reason to think otherwise).

The plan would have worked, if not for Google which made the price of patents skyrocket.

I dont really care much who owns those patents to be honest, I care about those companies who consistently, loudly and vocally oppose software patents.

To me, this argument looks like: <some stuff I dont care about in the slightest> Google: Software patents are bad and are going to be used against us.

That puts me, in this fight, squarely on the side of google.

But I am not fussy, if Microsoft comes out again and vocally declaims the evil of software patents, they can be on my side again as well.

What I really want to see is large software companies consistently and actively working against software patents in every direction, putting the patents they control into a pool that everyone can join on the agreement that they never sue anyone for patent infringement, and giving everyone in the pool equal ownership of the patents in there. While also working to lobby for overriding reform of the patent system.

that would be a good start, and I dont see anyone doing it at the moment.

So really, sod them all.

I care about those companies who consistently, loudly and vocally oppose software patents.

That's not Google. They tried to play the game just like the others. The protesting seems to have started after they lost.

Google isn't extracting patent licensing fees from anyone, nor are they a part of pools that do so like MPEG LA.

Until they do so, Google is playing the game honorably, because they have no choice - they are not playing the game just like the others.

Just a novice posting...if Google isn't extracting patent licensing fees from anyone, is it because it chooses to do so or is it because it wants to but can't, owing to a lack of patents?

I don't know enough to take sides, but I do know that non-specific software patents are 24-carat BS as 'defensive use' is super subjective. I just think that Google could and should have stayed away from Nortel bidding, or at least voiced concern before losing out to a consortium. That ways, it could have avoided the 'sore loser' argument entirely.

> putting the patents they control into a pool that everyone can join on the agreement that they never sue anyone for patent infringement, and giving everyone in the pool equal ownership of the patents in there.

That's an interesting idea! And they might even put some funds/legal help in there to help protect any member companies from patent suits by others. Then, if anyone is in this pool, they're protected by this NATO-like pact.

This kind of thing could kill software patents, if companies can join easily enough (e.g: Even without contributing patents).

This doesn't solve the problem of patent trolls, though.

They've banded with several other companies to buy these patents to ensure that their most successful competitor is defenseless against baseless patent litigation now and in the future. They're on the wrong side.

And before you start, the reason they're on the wrong side when they buy the patents, and Google isn't, is that they have a history of abusing the patent system, and abuse it currently, and Google does not.

Just a quick note here: using != abusing.

I agree that the patent system is broken as is, but there needs to be a mechanism protecting the intellectual property that allows companies to share their innovations with the world without fear of them being stolen (copying is cheap).

Are any of the patents currently being used in litigation against Android not bullshit? Really, is there even one?

Yes, everyone seems to have forgotten that Google isn't some scrappy freedom-loving underdog. They've 20,000 engineers, some shady tax practices and are happy enough to play IP games when it suits them. They are just another corporation (now).

I'd like to see a reference on Google playing IP games, that was not in response to another company starting an IP war.

SkyHook for one: http://gigaom.com/2010/09/15/skyhook-sues-google-in-a-locati...

Another example is their book scanning: http://voices.washingtonpost.com/fasterforward/2008/10/googl...

Although the way Google does it is differently than other companies. Since Google makes their money by giving away information they aren't so much about enforcing patents, but rather in blindly infringing. Their modus operandi is to do run all over your IP and then try to back you into a corner if you try to assert your IP.

If you don't believe in IP, of course you'd side with Google. Because neither do they. But if you believe companies actually have legitimate IP then you'll tend to see Google as one who simply copies or steals and then says, "What? Patents are bad. You're being mean to us -- we're the good guys!"

It's not in their best interest to respect IP. Their best interest is to make everything public -- except for all the data they've collected. That of course is holy.

You're right. I side with Google. At least on the patent issue and the fair use issue. I'm not sure about the anti-competitive shenanigans against SkyHook, as I don't know the facts.

My opinions are not because I "don't believe in IP", but because I believe that IP has been abused to the detriment of human advancement. I believe in fair use, I believe software patents are evil, and I believe making information available (within the bounds of fair use) is good for the world. I make my living off of IP. I'm a software developer, a published author, and a songwriter (I don't make any money on that, but I still like the protections copyright provides), but Google has a history of not being evil when it comes to wielding patents and IP against competitors, and your examples don't change my opinion on that. They're the company being sued in both cases.

They're the company being sued in both cases.

Of course. Because they're the ones who generally break the law. Google is like the guy who says that in a free society, everything belongs to the people. And then breaks in my house to steal my stuff. Of course I have him arrested and press charges. Your the guy who subscribes to this "free society" and argues in Google's support by saying that Google never has anyone arrested, people only arrest them. Indeed -- no one breaks into their house to steal things, but they're always stealing from others.

As a supporter of this "free society" you take the fact that they always steal and get arrested for it as a sign of their purity. I see it for less than that. Especially since they haven't come right out and denounced the patent system. At the very least they should buy PageRank from Stanford and make it open -- at least a symbolic gesture. The next step would be to open their search algorithms and make use of them free. Not likely to happen though. Even for Google, they believe in IP protection -- just not yours.

Because they're the ones who generally break the law.

Allegedly. The courts have not yet decided whether the allegations are true or not.

Google is like the guy who says that in a free society, everything belongs to the people. And then breaks in my house to steal my stuff.

I can't believe I even try to have a conversation with you at this point. You're such a ridiculous extremist that your arguments don't even make sense.

Are you actually a software developer or are you a "business guy"? I just don't understand how a programmer could have such screwed up notions of IP and believe in such bizarre analogies for IP law. Copyright infringement is not theft. It is copyright infringement. Patent infringement is not theft. It is patent infringement. IP and physical property are very different concepts with very different case law defining them, and it's disingenuous to conflate the two.

The next step would be to open their search algorithms and make use of them free.

This is a specious argument, and I assume you're smart enough to know it. No one in this discussion is arguing against trade secrets, or insisting that everything anyone ever thinks of be Open Source.

Patent infringement is theft of the money invested in R&D. If someone steals electronically from your bank account, is it any less theft because there was no physical cash involved?

Yes I agree that software patents are wrong, etc etc but that is a flaw in the implementation of the patent system, not its fundamental design.

Patent infringement is theft of the money invested in R&D.

Patent infringement is patent infringement.

If someone steals electronically from your bank account, is it any less theft because there was no physical cash involved?

Stealing electronically would be theft, not patent infringement. Theft via electronic means is nothing like patent infringement.

It is tempting to try to simplify complex topics with analogies or metaphors...but, in this case, the case law for intellectual property and physical property or money are vastly different. Conflating the two only serves to confuse people into thinking they are the same, when the law says they are actually quite different.

Since Google makes their money by giving away information they aren't so much about enforcing patents, but rather in blindly infringing. Their modus operandi is to do run all over your IP and then try to back you into a corner if you try to assert your IP.

In a proper world, blind infringement and independent invention should be proof that a patent is obvious, and therefore, invalid.

Exactly, if they are routinely but independently producing infringing work that is evidence that the patent system is broken, not that they have a poor attitude toward IP.

That assumes that infringement and innovation happens in a vacuum for Google. I think we both know it doesn't.

For example, a mouse and a GUI dekstop with file folders seems extremely obvious to me. But it's because I've been exposed to it. A phone with a capacitive screen, appstore, multitouch, and an actual web browser seems like an obvious way to design a mobile phone now. Using a mobile OS on a tablet seems obvious now. Calculus, the periodic table, and DNA all seem obvious to me now too.

Google has already been exposed to innovation. If Google came out of a rain forest in South America and just happened to have produced an iPhone with no human exposure in 2008 -- then sure I'd say maybe it was obvious. But given they fundamentaly changed their design to largely copy it, after seeing the success of the iPhone, leads me to believe it wasn't independent invention. But it was likely blind infringement (meaning they take no care to know if the IP is protected or not -- they copy everything with no sense of due diligence and just wait for the lawsuits).

"Look and feel" has been tested in court and found not to be something you can protect via IP, a couple of decades ago, and on a few occasions since. Just as a steering wheel is not something car makers could lay exclusive claim to, a touchscreen UI or a windows and mouse UI are not ideas that can be protected via patents; though, currently specific implementations could be (but, I'm opposed to that).

All of your arguments in this comment are about look and feel, and not about patentable technology.

So, you believe current patent law is not broad enough and should cover even more? I don't see how you could defend such a position, if you're a software developer...if you write any non-trivial software, you're already violating dozens, if not hundreds, of patents. How could you possibly believe adding more scope to software patents could be a positive force for good in the world?

That assumes that infringement and innovation happens in a vacuum for Google.

If Google came out of a rain forest in South America and just happened to have produced an iPhone with no human exposure in 2008 -- then sure I'd say maybe it was obvious.

Innovation doesn't happen in a vacuum for anybody. Apple didn't come out of a rain forest in South America and make an iPhone. They were exposed to previous innovation by MITS Altair, Xerox Star, Bell Labs Unix, Microsoft, Acorn, Commodore Amiga, Palm, Motorola, Nokia, and even some of their own previous work (NeXT, Newton). Innovations are judged as obvious or not in the context of the innovations that came before, not in the context of a primitive tribe. Besides that, functional patents don't cover

Patent discussions frequently get out of hand because a lot of issues get conflated. Some of the issues that should really be considered separately:

1. Overly-broad patents that effectively cover general ideas rather than specific inventions.

2. Non-novel patents that cover topics essential to computer science, covered by expired patents, and/or previously documented by academic papers whose authors are not associated with the patent.

3. Obvious patents that cover simple techniques used by everyone but nobody else patented because actual practitioners considered them public knowledge and/or too trivial to patent.

4. Patent terms that are ridiculously out of sync with the pace of technology.

The arguments I've read that led me to my current position on software patents are far too lengthy to summarize in a single post, but if you want to understand where I'm coming from, read What Technology Wants[0] by Kevin Kelly, along with the collected works of Pamela Jones, et. al. on Groklaw.

[0] Kelly makes some untenable logical leaps in nonessential arguments in the first few chapters, but the core ideas (that innovation does not occur in a vacuum, that most inventions are independently invented in parallel, and that innovation practically has a life of its own) are well-presented and defended.

This is a very odd article to say the least.

Why is it disturbing that Google is unable to buy these patents? These patents were sold to the highest bidder and the bidders were approved by the gov't.

How are MS, Apple & Oracle unpatriotic in bidding against Google for patents? Last time I checked Google, Apple & MS all have their cash in tax havens overseas. That, to me, sounds unpatriotic.

Why are these three companies specifically to blame for the bogus patents that are thrown out in court? This seems to put the blame squarely on the shoulders of the USPTO for even validating them. There are also the claims that were found valid in the courts. Are they bogus as well?

Has Apple or MS sued OHA members with these purchased patents? I realize the situation with Oracle is far more in the gray but it seems Apple has sued with patents they applied for and used in their products. Why should Google have the benefit of purchasing patents to leverage against Apple & Microsoft's own patents?

Microsoft has previously been accused of "misusing patents to further an anticompetitive scheme against Android". Here's a link to the relevant article on groklaw:

http://www.groklaw.net/article.php?story=20110427052238659

Disregarding your comments on patriotism and the USPTO (which I don't fully disagree with), the disturbing part about Google being unable to buy these patents, is that they appear to have been actively collaborated against in the auctions. Not being able to build a substantial patent portfolio denies them the ability to countersue in response to frivolous patent threats against Android, which I assume is a large part of why Google was willing to bid so highly for them.

Personally the part of the recent auction I found most disturbing was that the patents weren't sold to the highest bidder, they were sold to a conglomeration of bidders, some of which had already tapped out. To make a parallel with an art auction, it would be like half of the bidding floor banding together simply to ensure that another promiment bidder didn't get the piece. Possibly a valid action, but possibly anticompetitive, depending on the situation.

"To make a parallel with an art auction, it would be like half of the bidding floor banding together simply to ensure that another promiment bidder didn't get the piece."

Except that the "another prominent bidder" was invited to join the party but the bidder refused. If groups were forming, they were forming. If Google did not want to join, they did not want to join. But if they want to complain about others forming groups when it's legal - I'm not sure if one should have sympathy for them.

(The argument that I am going to make, has been posted a lot of times before - we need a way to merge threads)

1. You are confusing deals - Novell and Nortel

2. Actually it was (Google + Intel) vs Apple et al.

3. There is no sense - no profit for Google to be a part of bidding group that consists of competitors who are suing Google for IP infringement. Firstly, the deals were not discussed, so we can only guess what MS et al. were offering. So if I were to make a guess, MS et al. would have offered shared usage of Novell patents with (zero or minimal) licensing of IPs with guarantee of no lawsuits. Google would have required these patents, not because it wanted to build products relating to them but because they can be used to defend against other companies when they bring lawsuits on Google. These other companies are MS et al. So being in the same bidding group G to bid for patent set X as the company that wants to (counter-)sue other companies in G using the IPs in X would be illegal because of the contract. Hence, a useless deal for Google.

The scenario described in point number three is possible, it is also possible that MS and Google could have negotiated a cross-licencing deal of sorts to help their Bing and Android businesses. So we just don't know.

But there still are Appl et al. involved in the group. Additionally, I don't believe that such a deal would benefit MS. They are earning more from Android than Windows Mobile!

> But if they want to complain about others forming groups when it's legal

Do you really mean 'when', or 'if'?

The Novell patent group were restricted by the DoJ as to what they could do with those patents. This would indicate to me the original terms were not quite as legal as you make it out to be, and that this kind of thing can easily happen in the future (precedent has been set).

If forming groups wasn't (or isn't) legal, sue them.

Tremendous amount of deliberate misdirection in this piece. Some of it isn't even masked. "What does Google's note mean? Let's let them translate using their after-the-fact interpretation tailored for this current fight..." How does that clarify anything?

And this gem:

And if you look at the mobile litigation going on as we speak, ask yourself: who is suing and who is being sued? Does it look coordinated to you? It does to me. It's always the same direction. Android gets sued. Sometimes it's the vendors. Sometimes it's Google.

So either the author is completely unaware of the field being written about, or the author is lying.

How is the second claim inaccurate? I'm aware of a few retaliatory counter-suits but none that were initiated from the Android side.

Vivid picture of this so called "coordination" showing that claim is complete B.S.:

http://www.flickr.com/photos/floorsixtyfour/5061246255/

So "does it look coordinated to you?" On the contrary, it's chaos, but Google wanted in, really badly. Well, this isn't their daddy's monopoly, and it's not all about them.

(Also, in general, the newcomer doesn't assert patents against the old guard. It's not a conspiracy -- Google just got here last.)

Google, to fix this, stop whining about a few players amassing more toys at 5x the estimate when you only bid 4x the estimate, and do something about disarming the weapons instead.

Don't like "bogus" patents because they were invented before you thought of making a phone and you didn't get them for pi? Boo hoo.

Don't like patents at all? Great, let's go there.

The existence of hundreds of suits doesn't do anything against the claim that Android and Google are being effectively picked on by Apple and Microsoft and when they go in together to keep Google/Android from having leverage against such suits... Or do you still feel that my description is a mischaracterization of the events surrounding the sale of both the Novell and Nortel patents?

How many arrows are coming out of Google's bubble on that diagram?

> "when they go in together to keep Google"

Don't see any arrows out of Microsoft or Apple at Google either. Google's failed bid doesn't make them the center of the universe.

Apple learned a couple years earlier it's an arms race after they got hit from all sides. Lucky for them, they'd been doing handheld R&D for over two decades, and were able to fight back.

Despite its investment in Intellectual Ventures, Google hasn't stockpiled enough relevant ammo yet. They were trying hard to get some, to play the cold war detente licensing game the way the others were playing it long before Google or even Apple showed up, but 4x didn't beat 5x, and now they're trying PR as a tactic.

And yes, the existence of 50 arrows pointing at not Google compared to 3 at Google (from companies not shipping phones) does do something against the claim Google is being picked on.

>Don't see any arrows out of Microsoft or Apple at Google either.

And that's a fault of the image. On the other hand, I'm not aware of any suits levied by Google in relation to Android.

>Despite its investment in Intellectual Ventures, Google hasn't stockpiled enough relevant ammo yet. They were trying hard to get some, to play the cold war detente licensing game the way the others were playing it long before Google or even Apple showed up, but 4x didn't beat 5x, and now they're trying PR as a tactic.

I don't understand. If you grant that Google was trying to buy the patents defensively, then what is your problem with their "PR as a tactic", it fits perfectly in with their story. They wanted to buy the patents so that they would have leverage to protect themselves and HTC/Samsung/Moto who have been sued and are paying out to Apple and Microsoft. It didn't work so their only remaining stance is to argue that the system is wrong. The fact that they tried to excel or protect their interests, considering that their partners are very currently and very really having to pay out to Microsoft, doesn't seem to damage their stance in my opinion. The act of defensively buying patents and calling the system broken are not mutually exclusive.

>And yes, the existence of 50 arrows pointing at not Google compared to 3 at Google (from companies not shipping phones) does do something against the claim Google is being picked on.

I've not seen anyone claiming that "everyone who's not Google" is teaming up against Google. But I and others are suggesting that Apple and Microsoft collaborating to buy patents that would prevent HTC from having to give Microsoft $5 for every handset sold... is at least cause for suspicion of collusion.

Look at that picture again. If you're in the middle of that, you try to spend the least amount possible that results in detente. No conspiracy needed.

That's because there isn't an Android side. There's an HTC side, and a Samsung side, and a Motorola side, and so on.

Can you point to some examples of Google suing other mobile device manufacturers? If so, how many of them are offensive suits, and how many are defensive moves in response to being sued first?

The last to enter a space doesn't generally sue the incumbents, it's true.

Your point also holds true of Apple, and many of the other companies on that chart who only began to play this game after attacked.

How does she conclude Google tried to buy the Novell patents? I don't see that stated or implied in anything Google or Microsoft said.

If Google is so pure and innocent, why do they invest in Intellectual Ventures?

In response, Brad Smith, Microsoft’s general counsel tweeted, "Google says we bought NOVELL patents to keep them from Google. Really? We asked them to bid jointly with us. They said no."

That's mentioned in the article and has been posted several times. Even that tweet doesn't imply that Google actively vied for the patents, though, in my opinion, that's a pretty fair assumption.

This thread features a wider breadth of discussion about that particular tweet, in case you or anyone else might have missed it: http://news.ycombinator.com/item?id=2844722

My understanding, and I could be wrong here, is that Intellectual Ventures lists the companies that bought protection from it as 'Investors'.

So Apple and MS are anticompetitive?

Isn't Google being anticompetitive by effectively dumping the Android phones to the world markets (and then boasting how many copies are activated each day?) Google has played this game of offering "free" services and this worked for them well in terms of crushing smaller companies who just did not have resources to fire back. But this is not the case with big guys like Apple and Microsoft. Google was very naive thinking it will flood the market with cheap Android phones and Apple will just sit and watch. Google can expect to make money off ads, but Apple cannot. So they use patents to make it more difficult for Google to do what they want. Very simple.

In other industries there are anti-dumping laws and regulations, because dumping is considered an illegal way to kill competition. Google has been doing this for years, because their primary source of revenue is ads. To be honest, I don't have much sympathy to Google, not in this case.

Google doesn't ship phones, phones aren't free (there's always some cost, contracts, etc), and how is a freemium model anticompetitive?

You're justifying Apple suing Samsung for proceeds from Android sales by saying, effectively, it's hard to compete with open source software? Or am I mistaken?

Phones are not free, but Google offers Android licenses to phone makers for cheap. This leads to lower prices for phones. Yes, it's dumping because many of these phones are sold below what they actually cost to make if you take software development costs into account. This is classic definition of dumping.

I have to admit I don't know much about Apple vs Samsung lawsuit. But some Samsung Android phones sure look just like copies of iPhone to me. I am not surprised Apple has been irritated by this.

Is Dell "dumping" when they sell Ubuntu laptops and don't incorporate some sort of surcharge for me since I submitted a kernel patch for free? I can't imagine how open source software is ever part of a "classic definition of dumping". Are they dumping because they don't "take software development costs" of the radio firmware, or open source compression library, or (etc) into account? Besides, is the right response to "dumping" to collaborate with competitors to patent-block a common enemy?

I really, really don't understand your position, and that may be ignorance on my part.

(As for the SGS/II looking like the iPhone, that's really neither here nor there, but again, I don't think it excuses patent trolling.)

With Dell you have a choice of buying a PC with Ubuntu, or Windows, or whatever. Other manufacturers can also do this. Will you be able to use Android phones without Android? No. I don't think your example fits well here.

Android OS is the most essential part to make Android phones operate. It does cost Google a lot of money to make, yet it gives phone manufacturers licenses for cheap, just to make phones cheap enough so that users chose them over iPhones. Google wants it so bad they are willing to lose a lot of money now hoping it will pay off in future when everyone has Androids. Apple (and Microsoft) who cannot use this model (they don't dominate in ads or search markets) obviously don't like this. How would you feel if you were Apple? So they will try to use patents to make Android licenses more expensive. I hope I explained it well this time.

P.S. I don't know what is the right response to dumping. With physical goods it's easy to prove. With software much harder. This does not mean dumping prices on phone OS software to kill competition is nice. Apple and MS are just using what they can within legal means. Google did not play it nice with them - why they should be nice to Google?

> It does cost Google a lot of money to make, yet it gives phone manufacturers licenses for cheap, just to make phones cheap enough so that users chose them over iPhones. Google wants it so bad they are willing to lose a lot of money now hoping it will pay off in future when everyone has Androids. Apple (and Microsoft) who cannot use this model (they don't dominate in ads or search markets) obviously don't like this.

No need to wait for the future, Andy Rubin and Eric Schmidt have stated that Android is already profitable, through advertising revenue. That Microsoft and Apple can't compete with Google's business model is not unfair, it's business: they aren't owed profits, they must earn it.

In any case, you might as well say that Apple-Software "licenses" Apple-Hardware iOS for "free" and makes money from the App Store. Is it "unfair" that the Android Market doesn't dominate developer attention like the App Store has? And Microsoft in particular is trying to build its own search and ad presence, so they might in theory adopt Google's model; that they aren't successful enough to drop licensing fees is tough luck.

In any case, I'm not entirely unsympathetic to concerns that advertising-driven business models may cheapen software in the long term, but that this somehow justifies some pseudo-conspiracy to take down Android with patent litigation just flabbergasts me.

We can argue about what is fair forever. Some people at Sun (Oracle) can say it's unfair to take Java language they developed and offer it in Android without paying anything to them. And Steve Jobs can say it's unfair to use ideas from iPhone Apple spent years working on in Android without even asking them.

The original post was about MS & Apple being anti-competitive by using patents. To me, using a dominant position in search/ads market to crush competition everywhere else is no better. This is exactly what Google is doing.

You should ask yourself a question: will you be better off when Google one day dominates web, search, mobile, browser, possibly even desktop OS markets and desktop software and there will be no Apple or Microsoft and everyone will be forced to play the same game as Google? Will it be better off for everyone to make revenue on ads and pay Google a 50% share? I don't think it's going to be very good. This is why I would like both Apple and even MS also be players in the mobile if they offer good products. Competition, not domination by a single company is what actually drives innovation. Whose ideas will Google steal next when Apple is out of mobile business?

I don't think anyone wants a monopolist (a part from the monopolist itself). The most dangerous in the mobile space able to gain (regain?) a monopoly is Apple.

Google seams far less dangerous to me, just build on android (the open source project) and google monopoly can (thoretically) be broken... am I too naive?

You are being naive, by thinking that if Google says it's "open source" it has no leverage with it. "Open source" is a very misleading label Google also uses here. Google owns Android, they make Android - how can anyone break this by modifying it?

Dumping also means when the competition is wiped out the prices will be raised. Do you think Google is going to do this?

Dumping just means you sell something below the actual cost to kill competition. I don't know what Google plans are, as I said their source of revenue is ads. They want to become the largest player in the mobile market - because they will be in control of mobile ads then - just like they are in search, controlling 80+ percent of it. Do you want to see this happen? I don't particularly like this prospect.

Exactly, and they are not selling Android below cost. They are making a profit with it.

Google says so. Microsoft was also making a lot of money with its Windows OS back in 1990s, when it packaged a free IE in order to kill Netscape (which was not free). Microsoft was making money on the whole OS and packaged IE with all new distributions. Netscape as commercial company was killed, eventually. A lot of developers were sympathetic with Netscape back then: they pioneered graphical browsers, and were truly innovative.

Google today with Android is a lot like Microsoft back then. Yet for some reason, today offering free (deeply discounted, more precisely) stuff to kill competition is considered perfectly OK. I find this quite interesting.

Not really. With IE vs. Netscape, Microsoft tied IE into an existing monopoly (its Windows 95 OS). There is no smartphone monopoly or mobile advertising monopoly. Even if you consider Google's search and/or ad positions a monopoly, Google isn't giving Android away for free in association with its monopoly, it's giving Android away for free independent of its monopoly (as evidenced by Android phones that don't use Google services by default, instead using Baidu, Yahoo, etc.). IE was tied into the Windows 95 OS, so customers had little choice in using it. This doesn't even consider the various agreements Microsoft made with OEMs.

Also, behavior that is illegal or unethical for a company with a significant monopoly (e.g. Microsoft in the 1990s) may be legal or ethical for a non-monopoly company (e.g. Google's smartphone business in the 2010s).

Edit: I will add that Netscape's business model was probably unsustainable regardless of IE being free. Web browsers are better off being free.

So Google gives away Android for free because of a great heart, right?

Google essentially gives Android for free. Just yesterday I saw Nexus S "free" (with 2-year contract) on main Google page!

You can argue that any kind of software is better off free. More people will use it sooner if it's free. But I don't think this model fits everyone. What if you don't want to get outside investors right away and don't have deep pockets?

I did not know about Android phones not tied to Google search. I understand that you can switch your default search engine to something other than Google, but most people use the defaults. Windows users could have also deleted IE and installed Netscape. But with free IE pre-installed and working, most did not bother. Netscape got killed.

Google essentially gives Android for free. Just yesterday I saw Nexus S "free" (with 2-year contract) on main Google page!

You can get similar contracts with the iPhone. That has absolutely nothing to do with Google, and everything to do with carrier subsidies for phones.

I understand that you can switch your default search engine to something other than Google, but most people use the defaults.

The default search engine for Windows phones is Bing. The solution, if there is a problem, isn't to make Google charge manufacturers for Android. It's to make all phones ask which search engine should be used when you first power up the phone, just as the EU did with web browsers. I still don't see how that relates to the patent issues at hand.

Windows users could have also deleted IE and installed Netscape. But with free IE pre-installed and working, most did not bother. Netscape got killed.

This isn't very relevant, but with the level of integration between Windows and IE, it was not possible for the average user to delete IE.

Of course it has nothing to do with Google. And the fact the "get free Nexus S today" ended up on Googe's main page was just complete coincidence! Google did not even know about it:)

Here's the main question: we both agree that G gives away Android to phone manufactures for very little. Below the actual cost. You even pointed out it's not always tied to Google search and services. So why, why Google does this? Out of their great heart? Think about it - and perhaps you will see their motives are not that idealistic.

I look at Android as I do any other open source project. I believe in the right to give something away for free, for whatever motive. Telling Google they can't give Android away for free is like telling me I can't give away whatever I've uploaded to GitHub for free. It's just a different, but accepted, way of releasing software. RedHat makes money by selling support and proprietary utilities for use with its Linux distribution. Google makes money on Android in much the same way.

Many of these same arguments came up when Microsoft was complaining about Linux being Free. My reasoning is the same now as it was then.

Google is making money by providing support and utilities for Android? This is something new to me. They never told anyone except you?

As I understand it there are some closed source Google apps that cell carriers or manufacturers can license. They also make money from mobile advertising. It's similar to RedHat in the sense that they make their money on services related to the product they give away for free.

The whole dumping argument is a red herring and a waste of time. Just because something is offered for free doesn't mean its dumping.

Here's a definition of dumping: http://www.glin.gov/subjectTermIndex.action?searchDetails.qu...

Dumping only really has any meaning in international trade, and it refers to predatory pricing policy -- such as when Japanese steel companies were accused of dumping steel on the US market in order to kill their US competition a few years ago. To any reasonable person, there is a clear difference between steel and a mobile operating system. But, supposing this were in scope, if Google makes a profit from mobile advertising or takes a small cut of sales of Android phones by bundling Google apps, Android is still not going for less than market value in any kind of predatory manner.

If Android is being "dumped" to get an advantage in the advertising market, you would have to take the argument further on to other absurd conclusions. Should free newspapers be prevented from "dumping" in racks nearby paid-subscription newspapers? For that matter, is Craigslist dumping classified ads? Should Apple accuse Google for dumping email service in order to help corner the advertising market, since gmail is free and mac.com email is not? The absurdity continues.

I know exact definition of dumping involves international trade and all that. I used this word not literally, but because it's the closest term to what's happening.

Good example on newspapers: what is happening to them (they are dying) is one consequence of the web-ads model propagated by Google. Are you better off now with them dying and thousands of people being laid off, while Google's pockets get fatter and fatter?

Free newspapers don't offer quite the same content as subscriptions. However if they started reprinting materials from subscription-based ones and offering the same material for free, along with their ads, they should probably be restricted from this - for copyright violation. This example is much closer to what's happening with Google. And this is also the reason why some newspapers and authors don't want to be on Google.

This is not true. Newspapers are dying because the marginal cost of distributing the content is almost zero. There is no other good way to make money off of news content besides advertising. And note that newspapers were already making a significant portion of their revenue from advertising. The failings of the newspaper business model have almost nothing to do with Google.

So what they are cheap. If company A offers a product for $100 , and company B offers it for $10. If company B is still profitable from the product is it still unfair? Because Google has said since last year that they are already making more money from Android than it costs them.

But if what's driving them profits is partly contributed from their (dominant) position on ads, that clearly doesn't sound more fair to me.

Your problem as a consumer is that someone's actively innovating 50% of the cellphone experience for free (hardware is not in Google's control)?

I am really confused how giving something for free went from being nice to "anticompetitive jerk".

Are you saying that you will reject a product because it is free?

edit : wrong punctuation used

Oh so Google is offering stuff free because it's being nice! Very funny. I guess MS was also then being nice by offering IE for free to everyone? They did it because they were nice, not because they wanted to have everyone who offered non-free alternatives marginalized and killed, right?

As a consumer I don't mind free stuff. Engaging legislation so you can keep charging for something that is free sounds wrong to me (from a consumer perspective).

I mean no one complains about WalMart right ? It is convenient and people have to muster some other kinds of emotion to be against it (patriotism, low wages and exploitation etc).

I am glad you brought Walmart as an example. We soon will have a country full of Walmarts where local stores have no place, which looks the same everywhere you go. Walmart after Walmart. It's all cheap there!

Similarly we just may soon have a country when Google is the only software company to work for. Because everyone believes all software should be free and ad-based, and because Google is dominating the ads business.

> Google can expect to make money off ads, but Apple cannot. So they use patents to make it more difficult for Google to do what they want. Very simple.

> In other industries there are anti-dumping laws and regulations, because dumping is considered an illegal way to kill competition.

I have sympathy for the dumping argument. However, it doesn't justify an attack via frivolous patents. The end doesn't justify the means.

The fact that any company, from a new startup to Google, can be attacked in an unfair way by patents is bad for the industry. Especially when the dominant powers can coordinate to crush any new competitor. If Google can't disrupt the smartphone OS market because of patents, how could you or I?

If Google is in fact guilty of dumping here - and it might, I don't want to prejudge - then there are as you said existing laws to deal with that. Let that process sort it out.

Exactly. What good are patents for deterring suits if those suing you have a license to them too?

>"It's always the same direction. Android gets sued. Sometimes it's the vendors. Sometimes it's Google."

It could be a vast secret illegal conspiracy against Google. It could also be that Android infringed on a lot of IP during the damn the torpedoes rush to be the first iPhone competitor. Analysis using Occam's razor and an understanding of human nature is left as an exercise for the reader.

That's entirely possible. Then again, I can't imagine a single non-trivial piece of software that doesn't end up stepping on IP toes left and right. If you take a look at some of the overly broad patents many companies have been granted over the years, you can't help but violate them, even when writing trivial algorithms.

Great article. Some of the better analysis I've read so far

thanks for brining clarity to this situation. why does microsoft consistently belittle the general public by making misleading statements? they are just dishonest people who bash others as a way of furthering their own products. i have grown increasingly anti-microsoft as a result, to the point where i refuse to buy their software or products, and discourage anyone else from doing so.

Where would we be if Tim Berners Lee had patented http ?

Google need to win the 'make patents irrelevant' battle not the 'my bullshit patent portfolio is larger than your bullshit patent portfolio' battle.

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