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I think separating good guys and bad guys is pretty simple, if one is against (at least software) patents:

Using patents aggressively makes you a bad guy.

Google has not done this, Microsoft and Apple have.

They haven't done it because they don't have many patents. It's easy to act noble about how you'll use your patents when you don't have any. Other commenters have noted that Google is currently suing Apple and others over standards essential patents (no just because the lawsuit started before their acquisition closed doesn't mean anything, they could settle or withdraw their case). Google had the opportunity to join a consortium with Microsoft to bid on the Novell patents, they declined. They could have joined this consortium as well but they decided to bid for it alone. Not only would it have shared the costs among the group, but it would have also prevented each other from suing over them. Google clearly wanted to control these patents themselves so that they could extract licensing deals from others, something that isn't so easy to do when you just have a license for a patent.

Because Google bought Motorola after Motorola-Apple fight started, the aggressor is a bit more complicated, but still pretty clear cut to me:

Whichever side that is not willing to end the patent fight (without payments to either side) is the aggressor.

And it seems to me Apple is the one not willing to quit.

Well considering Apple was willing to actually pay a small amount rather than no payment at all, I don't see how you can see them as the aggressor. Motorola clearly stated that they wanted more for it.

It seems like Google had more control over whether that lawsuit was filed than I thought. From FOSS Patents:

>A few months after that Zeitgeist talk, in January 2012, Google authorized a Motorola Mobility lawsuit against Apple over six patents in the Southern District of Florida. The merger agreement was publicly available and absolutely unequivocal about the fact that Motorola needed Google's consent prior to bringing new IP assertions while the merger was under antitrust review.

EDIT: Since it's not letting me reply to your comment, gonna post it here.

If you're talking about Motorola vs. Apple in general now, clearly Apple wasn't the aggressor. Motorola was the first to sue over patents prompting Apple to counter-sue.

http://en.wikipedia.org/wiki/Motorola_Mobility_v._Apple_Inc.

You forget that Apple has their own patent suits against Motorola that they are not dropping. Ending the fight would mean that both drop their patent suits. Seems to me that GoogleMotorola wants this and Apple doesn't.

What's your evidence for that claim?

I think it's pretty clear when you read things like

http://googleblog.blogspot.fi/2011/08/when-patents-attack-an...

I don't think it's pretty obvious when you cite the blog for a company involved. Google's been fairly cavalier in infringing some patents (Regardless of whether their good patents, Google knew they were infringing). It should also be noted that the biggest Android player apart from Google, Samsung, has taken to suing aggressively.

I understand you to be arguing that it is not clear that Google would, if given the choice, drop all patent litigation (sued and suing), and Apple would not?

Replying to your edit:

Yes, in the Motorola-Apple suit, Motorola was the aggressor and the bad guy. But when Google bought them, Apple had already counter-sued them. That's why I defined the aggressor between Google and Apple as one that is not willing to quit.

These patents are also FRAND patents from what I can tell, so I wonder how long it will take for the governments to intervene.

>"Google clearly wanted to control these patents themselves so that they could extract licensing deals from others..."

Has Google ever extracted licensing deals from others?

They've certainly tried to against Microsoft but they failed. Microsoft and Apple were required by the government to license their standards related patents under reasonable terms to anyone before this Nortel patent portfolio buy was cleared. As far as I know none of them are trying to sue over SEPs. I don't even think this lawsuit contains patents related to standards, but it's kind of a moot point because no company actually has a controlling interest in Rockstar. It's all John Veschi and other former Nortel employees who run their company.

http://allthingsd.com/20130905/microsoft-trounces-google-in-...

I find your username amusing given the context of this thread. IBM could stand to make some money by licencing out some of their patents as they have done in the past:

http://www.zdnet.com/blog/facebook/yahoo-was-licensing-paten...

http://news.yahoo.com/facebook-buys-patents-ibm-defend-itsel...

Incidentally if anyone is told their work is to be patented and will only be used in defense - bear the above behaviour in mind, over time, companies will not just use patents in defense.

Ha, it seems I'm a bit late to make that prediction - it's already happened.

http://www.bloomberg.com/news/2011-09-14/google-purchases-1-...

>Google has not done this, Microsoft and Apple have.

Google's Motorola Mobility has sued others based on patents in their portfolio.

This included Google trying to extort absurd sums for FRAND patents.

I don't see how Google gets a free pass because that was its wholly-owned Motorola Mobility when Apple/Microsoft/RIM/etc don't get a free pass because Rockstar is an independent entity.

Google has only asserted patents against people that are trying to attack Android using patents. The previous two comments are absurd. You look at Google's patent litigation record and shit is crystal clear. Patents are being used defensively by them.

Because this litigation began before the acquisition of Motorola Mobility?

Or because the patents in question were H.264 ones, which the defendant themselves already collects royalties on?

But isn't the point being made that this is better not looked at as a good versus bad, it's better looked at as one sort of bad against another sort of bad.

The fact that one of them is slightly better than the other in one regard doesn't change the fact that neither of them are really that worthy of your support.

You're right that Google haven't been patent aggressors up until now but if recent behaviour teaches us anything it's that Google have been very willing to change what they've stood for historically. If you believe that they'd never change that position if they felt it suited them then you have more faith in them than I do.

"The fact that one of them is slightly better than the other in one regard doesn't change the fact that neither of them are really that worthy of your support"

Retaining them defensively isn't "slightly better". Using them offensively is significantly worse.

"You're right that Google haven't been patent aggressors up until now but if recent behaviour teaches us anything it's that Google have been very willing to change what they've stood for historically. If you believe that they'd never change that position if they felt it suited them then you have more faith in them than I do."

That just sounds like weak speculation to me. Patent fee extortion is the sort of thing you do if you have a gradually declining (Apple) or minimal (MS) market share.

Retaining them defensively isn't "slightly better". Using them offensively is significantly worse.

That is only until you study how you use defensive patents defensively.

Suppose that you join a patent pool like http://www.rpxcorp.com/. Then you're sued by a patent troll with no assets other than a patent. How exactly is RPX going to help you?

They used to state it in their FAQ. Then removed it, but I'm sure they still do it. They negotiate with the troll. And to make it cheap, they give the troll what they want. They give the troll another patent, in return for a binding contract to not sue anyone protected by RPX.

(I became aware of this possibility after 3 patents taken out with my name on it when I was younger got sold to RPX.)

> But isn't the point being made that this is better not looked at as a good versus bad, it's better looked at as one sort of bad against another sort of bad.

The direct consequence of this would be a call to get rid of the evil on both sides and abolish the (software) patent system altogether.

I'd like to emphasize a quote from the end of the article:

> Patents have become the arena in which tech companies have chosen to do battle.

There is no longer competition about the best user experience or the best technical solution to an engineering problem but competition about who can file the best vague, yet court approved patent and secure the most destructive intellectual properties. I don't understand why we are still only talking about reforming the patent system.

> There is no longer competition about the best user experience or the best technical solution to an engineering problem but competition about who can file the best vague, yet court approved patent and secure the most destructive intellectual properties. I don't understand why we are still only talking about reforming the patent system.

Seriously?

iOS7 and Android Kit Kat both move user experience forward both in terms of the UI and the functionality offered. The latest iPhones, Android phones and Lumias are clearly better than what went before. I suspect if you asked average engineers at Apple, Google or Microsoft how much of their time and energy is taken up addressing problems caused by patents the number would be pretty small and if you look at how much those companies spend on patents, lawyers and settlements it's dwarfed by what they spend on product development.

To put the giant $4.5bn spent on the patents in question in context (and remember that's was shared between several companies), it's about what Samsung spend on marketing in a year or half of Apple's 5C/5S iPhone sales for the first weekend they were on sale.

Yes patents are impacting the industry but that's not to say that competition about things users care about has stopped, it's just slowing things up a bit.

>> Yes patents are impacting the industry but that's not to say that competition about things users care about has stopped, it's just slowing things up a bit.

I think "slowing things up a bit" is a great understatement. Hackers who could build the Next Big Thing have no chance at success if it takes a billion-dollar patent arsenal to avoid getting sued out of existence.

Who wins this fight is a side issue. The real issue, I think, is that only such giants can compete. If so, we're missing out on a lot of innovation.

A lot of products can be dreamt of that do not benefit the Apple or Microsoft or Google ecosystems. But can they be built without infringing "a navigation tool for graphical user interface?"

And yet most people are somehow managing to avoid getting sued out of existence while still building amazing products in small companies and start ups.

You have a point and I was a bit polemic. Nonetheless those conflicts do reach the consumer in a significant manner, for example last year, when I updated my smartphone firmware for stability reasons, all the rubber band menus vanished and were replaced by glowing edges because of the ongoing dispute. And those patents weren't even applicable in my country. Also remember all the cases where one side was trying to prohibit the sale of some phone or tablet somewhere in the world.

I don't dispute that there is an impact but your example shows the real scale of it. Is rubber banding really such a great loss? Yes it's nice but what's the actual impact on the quality of your experience been?

Frankly most of the patents that have been enforced seem to me at least to have been pretty minor and relatively easy to workaround with little real impact on the user.

To take the counter-argument, do these things really need the protection of patents then? Wouldn't the situation be better for the user if minor innovations of this sort could be borrowed, and companies instead needed to continue innovating in order to differentiate their products?

I could see a short protection period for things like this, but the magnitude of current protections seems extreme.

I agree - my personal preference is for reform of the patent system to provide a higher bar for what can be patented (actively used by the owner in a current product, evidence of significant investment to get there, significantly non-obvious and so on) and a shorter period (three to five years except in exceptional circumstances).

But that's a somewhat different argument - the original point was that consumers were being significantly impacted and I don't think this shows that.

To my mind the biggest impact may be coming from FRAND patents, the terms of which don't have to be particularly fair or reasonable and as such can easily be used to block new entrants. To my mind FRAND patents should have transparent licensing terms which are common to every licensee whether you be a major multinational or a two man start up.

The amount spent on patents and related litigation is massive. There are other large costs as well of course, but the patent fiasco is a large drag on the industry.

Something I'd like to see in addition to the now-pending reform is a law limiting damages to a fraction of revenue related to how the patent figures in the device in question. That ends up looking like a mandatory licensing fee, which I think would be about right for those few tech patents which are actually valid.

When Jobs claimed that Android was a stolen product and that he was willing to go nuclear on it, this is what he meant. And his claims have some merit. It is hard to blame Apple for using legal weapons to go after Google no matter how distasteful the use of such weapons might be.

This is according to some moral code or what? The world doesn't abide a set of moral rules. Rules are made by people who can't win without them. You can't tell everybody to stick it and start entering several industries at once. In the real world you have to be cooperative, as well as persistent, because you are not the only 800-pound gorilla.

> Rules are made by people who can't win without them.

What's that? The official motto of all bullys and anarchists?

Anarchists? I'm sorry, but how about learning what that word actually means?

When I come to think of it, I might indeed sound like pro-anarchi but I don't share any political or religious views, rather try to accept things for what they are. Rules are nothing but conditioning. Attempting to give moral and ethics questions an ultimate answer bounds that group of people to go radical and crash with reality.

Nothing extreme could ever work. It's an equilibrium with lots of different sides that change their weight with time. Another manifestation of this is the mafia. It is present in every society in History. It's a human flaw. Rather than ignore it and pretend it's not there, maybe we should talk about it.

Understanding other people's position and making compromises is key if sustainability is your primary goal.

Well, if you want to label good guys and bad guys, you need some rules to judge them with. In this case the moral code for me is that software patents are bad and whoever abuses them is in the wrong.

No,rules are made by people who can enforce them.

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