Google: Apple, Microsoft Using “Bogus” Patents to Stifle Android

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Apple, Microsoft, and Oracle are a bunch of sore losers who are trying to use a stack of “bogus” patents to stifle and “strangle” the awesomeness that is Android because they can’t compete through innovation, or so David Drummond, Google’s Senior Vice President and Chief Legal Officer, said in a blog post Wednesday.

Never mind, of course, that it is precisely the lack of innovation that Apple, Microsoft, and Oracle have charged Google with through the numerous patent infringement complaints and lawsuits the companies have launched against the search giant.

Mr. Drummond made the case that the number of Android devices being activated every day, some 550,000 according to Google, are proof that Android is awesome, and that it shows that, “Android and other platforms are competing hard against each other,” though how it shows this he didn’t specify.

He added, “But Android’s success has yielded something else: a hostile, organized campaign against Android by Microsoft, Oracle, Apple and other companies, waged through bogus patents.”

He accuses Apple, Microsoft, and Oracle of conducting an orchestrated “anti-competitive” campaign to leverage their existing patents, and to buy patents from other companies like Novell and Nortel, to make Android too expensive for hardware manufacturers to use the OS for their smartphones.

“Patents were meant to encourage innovation, but lately they are being used as a weapon to stop it,” he wrote.

Which is a ballsy crock of poop. That’s right, a ballsy crock of poop.

Let me amend his sentence so that it’s less full of poop: Patents were meant to encourage innovation by arming innovators with the power to stop others from copying and profiting from their innovation.

There, that’s less poopful, and it is also a more reasonable characterization of the “orchestrated campaign” being fought against Android by Apple and Oracle. It might even apply to Microsoft, but I know markedly less about Microsoft’s patent infringement claims against Android device makers than I do about Apple’s and Oracles, and I won’t pretend to address those claims.

Google has worked very hard to play the victim in the patent wars, but it does so by ignoring the hard reality behind those wars: The company copied innovation that was invented and brought to market by Apple. It copied Java-related technology owned by Oracle in the process of doing so.

Google isn't the victim in the patent wars, it's the perp.In other words, Google is the one trying to stifle innovation by copying the inventions of others, which is precisely what the patent system was intended to prevent, and crying foul and playing the victim gets zero sympathy from me.

To be certain, the U.S. patent system is a bloody mess. Today we have patent trolls galore who patent a concept and wait for other people and companies who actually produce goods to do something that may utilize that concept so they can sue and earn all manner of licensing fees.

True patent trolls (in my mind) are real leeches on innovation because they don’t produce anything, they don’t create anything, and they never intend to. They wait for their betters to do the work and then leech profits off the top and call it a day.

At the same time, there are so many patents to navigate, the chances of a small company being able to come up with some kind of disruptive technology and bring it to market in the computer, smartphone, or tablet market is next to nil at this point. It takes too many lawyers and far too much money for that to happen. That is something that definitely limits the potential for innovation.

So there are definitely problems with our current patent system, I just take umbrage at Mr. Drummond’s efforts to hide behind those skirts when defending his company.

“A smartphone might involve as many as 250,000 (largely questionable) patent claims, and our competitors want to impose a ‘tax’ for these dubious patents that makes Android devices more expensive for consumers,” he said.

A lot of those patent claims are dubious, maybe even most of them, but some of them aren’t. Some of them are truly innovative ways of doing something that someone worked long and hard to figure out. A lot of those someone worked at Apple while the company toiled for years to invent a touchscreen operating system that would revolutionize the cellphone industry.

Nokia is another company that has innovated in this area. The company figured out how to do some things that ended up becoming foundation technologies in the cell phone industry, and were deemed to so important the company was required to license them on a fair, reasonable and non-discriminatory basis.

Apple refused to pay the company’s licensing demands (Apple accused Nokia of trying to extort money above the fair and reasonable licensing terms Nokia was required to charge), and when Nokia sued, the two companies eventually came to terms.

Apple should not have been allowed to use the technologies that Nokia had invented, as was made loud and clear by the Apple haters when that battle was being fought at the beginning of this patent war, and in the end it was not allowed to do so.

Google is in a similar spot with Android, in my mind. Apple invented a new and disruptive smartphone with a touchscreen interface that had never been done before.

Let me be clear about that: Before iPhone, there was no touchscreen smartphone. Before iPhone, Android was a keyboard-driven affair that would have put the hurt on RIM’s BlackBerry had iPhone not come out before it could do so. But iPhone did come out, and it changed the rules in the process, and Google quickly adapted Android to compete with iPhone instead of BlackBerry.

Just as RIM itself did, though it did so poorly.

To get there, Google had to step on Oracle’s toes, too, building a proprietary version of an open source Java derivative that Oracle says infringes on its Java patents (remember that Oracle bought Sun, the inventor of Java). That battle is still being fought.

To get back to the central point, Google claims that the patent system was intended to encourage innovation, and that is true, but the company is blithely ignoring the fact that when it comes to Google, Oracle, and Apple, the patent system was designed to protect the true innovators, Apple and Oracle, against Google, the copier.

Google isn’t the victim in the patent wars, it’s the perp.

Hell, even Microsoft, a company NOT known for being innovative, went its own way with Windows Phone 7.

The patent wars are currently being fought by proxy, at least by Apple, with the iPhone maker suing hardware makers for infringement. Apple has not yet sued Google directly, and Apple’s precious touch-related patents haven’t yet been litigated.

My personal assumption is that Google eventually will be sued by Apple, and I would imagine that without substantive changes to Android, changes that will no doubt make the smartphone OS less user-friendly, Google will lose.

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Comments

xmattingly

?Patents were meant to encourage innovation, but lately they are being used as a weapon to stop it,? he wrote.

Perhaps I can offer a different amendment: “Patents were meant to encourage innovation so that, in a capitalist world market, you can be assured that you are able to make money off of your inventions, and that others can’t syphon your profitability by simply copying your design.”

This is coming from the same company who was busy copying the Blackberry form factor shortly before Apple unveiled the iPhone, which they subsequently copied? Hey Drummond, there ain’t a patent on whatever you’re smoking. I want to live in your fantasy world too!

BurmaYank

I love your Android icon’s wet pants, Bryan!

David Drummond’s accusations & protestations seem really just another way of saying, “Ouch! Those suits really hurt & scare us!”

Bosco (Brad Hutchings)

Bryan, a couple of things. First, software (aka business process) utility patents are the problem, and have been a problem since their inception. Sadly, because you’ve gone and written a book with Bob LeVitus and it’s available on Amazon, I can’t easily Google for something you might have written in the past about “One Click”. I can’t imagine that you were a fan of Amazon’s One Click patent back in the day. So I’ll just have to ask you how you draw the line on ridiculous software patents that are upheld through various challenges and appeals. What ensures us that the software patents Apple contends have been violated aren’t also ridiculous in some sense?  Well, besides that they are software patents…

Second, one thing I’m very happy that Google didn’t “copy” from Apple is the whole widget model, locked up app store, and nanny-state control of the software ecosystem around iOS devices. Does it not give you a little bit of pause with your theory of Google as illegitimate copiers that they didn’t copy the thing that you seem to feel is most important to Apple’s profitability in this space?

dlstarr7

I also loved the pee pee pants android.  Nice work!

RonMacGuy

Bryan, next time put a picture of Bosco with wet pants holding hands with android icon!!

BTW, I’m glad for a locked up app store given the recent announcements about android’s malware being on the rise. There’s even malware now that records your phone calls and uploads them!!

Bryan Chaffin

Ron, be nice.

dlstarr7, my idea, but Jeff made it happen!

Brad, I wish Google had copied the whole widget model (which isn’t patentable at this point and apple didn’t invent it to begin with. I wish they still would! I think Android would be MUCH more compelling with one vision guiding its hardware and software development.

I wasn’t a fan of the One Click patent, but I don’t remember writing much about it. I didn’t know much about software patents at the time, and know just enough to get into trouble today.

But note that Apple licensed it, and without a lawsuit from Amazon.

I’ll also merrily concede that software patents in general are a nasty can of worms.

But the point of this column was not to argue the merits of patents in general, but to lampoon the idea that Google is a victim.

Mr. Drummond’s letter is a farce, and it deserves to be mocked, mercilessly.

Had he written about the the problems with software patents or argued that when it come to software, companies should be free to build on each other’s ideas because EVERYTHING in software is built on SOMETHING else that came before it, even if its reactionary, I wouldn’t have written what I did.

But within the current system, Apple deserves protection for what it invented, and Mr. Drummond’s letter is a rather poor attempt to redefine reality.

Bosco (Brad Hutchings)

Well, we’ll just have to disagree on the whole widget model applied to Android. Do note that that’s effectively the direction HP has flushed itself down the mobile toilet with.

Drummond’s letter is actually about perfect. If you look at the discussion threads spawned on various sites across this Internet, Apple fans hate it and Google fans love it. He pretty obviously was trying to strike that delicate balance. I’m good with it provided that Google has a DO NOT Fornicate With Me moment in the coming months vis a vis Apple. The moment doesn’t even have to terribly overt either.

Also note that I’m not calling out design patents. I think the way things work in the fashion industry (i.e. there is very little IP apart from trademark and copyright) offer a better guide to the right roles of innovation, copying, and remixing (a good friend of mine from college did that linked interview, BTW), but I can accept that the wider world needs time to understand more dynamic market models. Samsung is close to the line on design patents, while HTC and Google really don’t approach at all.

Jamie

I just don’t have the words for this company anymore. I deleted my Google+ account today, and my world did not crashed down around my ears, it turned out.

mhikl

Darn good report, Bryan.

First Google / Android copies RIM?s keyboard phone. Then it copies Apple?s smart touch phone. Tomorrow if a super sniff phone were to appear on the scene, Google would jump on that best seller like lice to a warm body. What a cow of a company. Drummond and rabid Droid supporters, how do they live with the lies and deceptions this awful company represents. I guess, in the times we now live there are few honest knights to learn from, and for that we must suffer when truth is so reviled by these interpreters. But we can answer the blasphemy and lies these deceivers spout when the facts are written so well as you and other TMO editors have shared.

Here is how the blasphemer works. Take the legitimate reasoning of your opponent and apply the same logic to your illegitimate position and then repeat it ad nauseam. Never give an inch. Seek out any little weakness in your opponent. The twisted irony of this illogical sophistic strategy is that it works, really well. But the sophist does not win in the honours of man. He only lives to spin his lies and that is where he is successful, in the spread of misinformation and propoganda. It’s an ancient story.

The fact that Mr Drummond keeps raising these concerns underlines the fact that Android is in deep difficulty, bottomlessly deep. Google does not like to spend money any more than Apple (who has lots more of it) and it is doubtful that anything other than pontificating will be uttered from Google. Especially in light of the fact that Google doesn?t give a darn about Android and its twisted sisters, really. It?s all in the advertising revenues, the clicks, and that is that. So few clicks on an iPhone abets Google?s grand raison d’?tat. Apple’s iPhone is its greatest enemy.
——————
You are right that some words may step beyond the line of civility, Bryan. The line, however, is not some definite thread between civility and discourtesy. It is a wide ribbon and a lot of dancing takes place on it. Some are better able to get away with dancing to the side of incivility than others. I think we know of whom I speak.
——————

Bryan says:  I . . . know just enough to get into trouble . . .
That about sums up my situation, Bryan.

BurmaYank

”... I?m good with it provided that Google has a DO NOT Fornicate With Me moment in the coming months vis a vis Apple. The moment doesn?t even have to terribly overt either.

If & when Google ever has such a “DO NOT Fornicate With Me” moment with Apple, we will be able to know it has happened, even if that moment isn?t terribly overt, when we notice that the Droid icon’s green-darkened peepee pants have become poopoo brown-darkened (+/- attracting flies).

Nemo

My Brother Drummond has at least three fatal flaws in his argument.

First, it is extraordinary that a major company’s general counsel would spend the time and his public capital to deal with bogus patent claims.  Given the first class quality of Google’s patent litigators, if Apple, Oracle, and Microsoft’s patent claims are bogus, Google’ legal counsel should be able to dispense with them in short order.  It would not take Mr. Drummond, Google’s General Counsel, making a public plea for support to aid his outside counsel in quickly dispensing with bogus patent claims.  But Google’s topflight patent counsel, who are representing both Google and some of its Android OEM partners, haven’t dispensed with Apple, Oracle, and Microsoft’s claims. Quite to the contrary, Apple, Oracle, and Microsoft have so far done well in the legal tribunals.  And Oracle and Microsoft have made great headway, which indicates that at this stage of the proceedings neither Apple, Microsoft, or Oracle’s claims are bogus but are full of merit and are a potent threat to Google’s Android and Google’s Android OEMs.

The second thing that strikes a lawyer as betraying weakness in Google’s case and not weakness in Apple, Oracle, and Microsoft’s claims or defects in the patent system is that only Google’s Android and the Android OEMs that practice Android devices are facing such a quantity of existentially threatening patent infringement suits.  In fact, only Android and its OEMs are facing existentially threatening patent suits. 

Apple’s iOS is a brand new mobile OS using revolutionary technologies.  If the patent system is as broken as Mr. Drummond says it is, why isn’t Apple facing a like quantity of existentially threatening patent infringement suits as are Android and the Android OEMs.  The same is true for Microsoft’s Windows Phone7.  How has it escaped the defects in the patent system which so afflict Android and its OEMs?  Surely, Apple and Microsoft are wealthy companies so that so called patent trolls would be happy to relieve them of a good chunk of their money.  Of course, the reason Apple and Microsoft are not facing the same quantity of potentially damaging patent suits are two:  (1) They have duly licensed others’ technology rather than infringe on it, and (2) Microsoft and especially Apple have invented and patented their own mobile tech rather than infringe on the tech of others.  So it isn’t any defect in patent system that afflicts Google’s Android; it is the allegations that Android has infringed on others’ IP, which, if proved, will be devastating, if not lethal, to Google’s Android.

Mr. Drummond’s conspiracy theory also falls flat.  It is easy to deal with Oracle.  Oracle doesn’t make smartphones, so its business isn’t in any threatened by the legendary success of Android.  Oracle, thus, isn’t part of any grand conspiracy to destroy Android.  Oracle simply wants to be paid for its IP rights in Java, rather than have Google, Android OEMs, and Android developers use Java for free.  If Google had licensed Java, when it had the chances to do so, Oracle wouldn’t now be suing it.

What of then of an Apple and Microsoft conspiracy?  Even to say it strains credulity.  First, Apple and Microsoft aren’t, as has been well documented, in the business of doing each other favors.  Instantly, Microsoft and Apple’s IP infringement claims are distinct and independent, and, if proved, will provide each company with more than sufficient independent motivation to pursue Android without the need for any anticompetitive conspiracy.  Microsoft wants to be paid for its tech or to stop Android devices from using its without license.  Apple insists that no company compete with it by using its own technology against it.  That is enough to get Apple and Microsoft to independently pursue Android and its OEMs for infringement without any grand conspiracy theory.  Therefore, the issue comes down to whether Apple and/or Microsoft’s claims have merit.  If Apple and/or Microsoft’s patent claims do have merits, that Apple and Microsoft may have ulterior motives beyond protecting and enforcing their IP rights is legally irrelevant, because Google and/or its Android OEMs could have prevented any illicit ulterior motives by simply not infringing.  (continued)

Nemo

Finally, Mr. Drummond’s diatribe is easily recognized by lawyers as part of an old maxim:  If you can win on the law, argue the facts; if you can’t win on the facts, argue the law, and if you can’t win on the facts or the law, get the hell out of court and start crying foul in public.  Mr. Drummond’s taking of that last course suggest that things are going poorly for Android in the courts and other tribunals that are adjudicating the legion of patent infringement suits against Android.  It is unusual to the point of being nearly unprecedented for the general counsel of a major company that is sweeping aside all bogus patent claims to make such an obvious public polemic to depict both its opponents and the patent system itself as wicked.  I dare say that if Google and its Android OEM partners were enjoying sweet days in the courts, we wouldn’t have heard from Mr. Drummond, except for some very tasteful and limited crowing at most.  Recall how Apple crushed Psystar with nary a peep from Bruce Sewell, Steve Jobs, or any other Apple executive or spokesperson.  And Microsoft has quietly gone about the business of collecting patent royalties from Android OEMs, with merely a simple press release to announce each deal.  Yet, Mr. Drummond is howling like a tomcat in heat, and I suspect that it is because he is having to flee the courts and take his case to the public.  Unfortunately, the downside of this legal stratagem is that the public doesn’t render a judgment that carries the force of law.

Joel

This whole post from Google just pisses me off.  There are so many folks out there who just think Google is the “good guy” defending all of us.  Not so.  One guy on Engadget posted that Google doesn’t sue anyone.  My response:

Google never sues anyone for two reasons:
1. They have hardly any IP.  Fewest and weakest patents of the major tech companies.
2. They rarely create anything new/innovative.  Apart from the original search engine algorithms Google hasn’t innovated all that much.  For example:
Google Maps - better version of Mapquest
Gmail - mediocre mail program but gave away lots of space for free
Android - Google had begun work on the Android project before Apple announced the iphone…it was also an acquisition though…they didn’t invent it.  But if you go back and look at what Android was before iphone was announced it’s pretty hilarious.  Looked exactly like every other crappy mobile phone OS.  Iphone was announced and a year later they pretty much copied everything in iOS but then added a bunch of geeky features.
Google Video - Failed miserably.  So instead they spent $2B buying youtube
Google TV - Failed miserably.  half baked repurposing of a bunch of prior attempts at web TV
Google Radio - their attempt to apply their web expertise to radio advertising.  They bought an existing company, made a huge splash, and 3 years later exited the business.

Not to mention their numerous attempts to copy Facebook over the years which have all failed.

I think Google has done some great stuff as a company and they have brilliant engineers but in terms of true innovation they don’t exactly have a track record of home grown ground breaking innovations.  Therefore they don’t have much to protect.

BTW - if you somehow believe Google is the benevolent “good guy” in all these patent wars and really cares about open source software you should do a little more research.  Google made Android open source for 2 reasons:
1. They knew it was a bag of hurt from an IP perspective.  Not only what they inherited but also what they added to it.  By making it open source they don’t make any “revenue” from it and therefore the lawsuits are directed towards the handset manufacturers.
2.  This cleverly allows them to basically make side money off the OS (by installing their google apps and getting the advertising $$) but they don’t have ANY of the downside associated with the massive patent infringements. All the while they go about looking like they’re just giving away “free open source software!”

It’s actually a pretty brilliant strategy from a business perspective.  Just don’t be fooled into thinking they give a rats ass about the “open” movement etc.  that’s just a small piece on a chess board that they’re playing to their advantage.

skipaq

Bryan, thanks for a good read on Google’s latest bombast. Not being a lawyer and having no clue about patent laws tends to make me refrain from commenting on those. My background is in management. Everything coming out of Google suggests that they have a big problem. The silence is deafening from Oracle, Apple and Microsoft. This also suggests more trouble is coming.

Apple’s strategy is very interesting. They have gone after Android OEMs. Their target is clearly Google. These early patent contests appear to be just the opening skirmishes to probe for information and weakness. The real battle probably is yet to be fought.

From a business point of view Google is blinking.

skipaq

I’ll correct myself. Just saw this posted on another site. It is from Microsoft’s general counsel.

In a tweet, Smith stated, “Google says we bought Novell patents to keep them from Google. Really? We asked them to bid jointly with us. They said no.”

mhikl

Joel, your post was a two coffee read. Delicious! a lettered challenge for disciple and restraint upon the eye not to treat like candy but to savour and, point by point, meditate upon; though I had no control to calm my heart and breath. Fortunately, having completed my morning rituals, my pants and couch were safe from soil.

Skipaq, bless you for Smith’s 23 words. Embossed in gold upon my cup they shall be!

It?s smoke, and it?s flames and Google is crashing to the ground. Oh, the humanity!

Nemo

Who Apple, Oracle, and Microsoft sue for IP infringement depends on who is doing the infringing.  Apple is suing the Android OEMs, rather than Google for infringement, because it is the Android OEMs, not Google, that practice the allegedly infringing invention, that is, it is the Android OEMs, who build the devices that actually infringe, if there be infringement.  This is even true of software patents, which, contrary to popular belief, are not simply patents on code but are patents on code that runs on a processor.  So, when Apple reviewed its patented technology, though Android itself enables the allegedly infringing Android devices, the actual infringement would occur at the level of the device, which, except for the Nexus One, means that it is the Android OEMs, not Google, who are allegedly infringing.  And the Nexus One never amount to much.

The situation is similar for Microsoft, where the allegedly infringement occurs at the level of the the Android device.

The situation is different for Oracle.  In Oracle v. Google, it is Android itself, rather than an Android device, where the alleged infringement occurs.  It is the Java code in Android that runs on Android devices that infringes.  So Oracle sues Google for IP infringement, copyright infringement for the code itself and patent infringement because it is Google that builds the essential component of the allegedly infringing Android devices, which is the Java patented code in Android that runs on the CPU in Android devices.

Certainly, Apple would love to sue Google, but, since the infringement of Apple’s patents occurs at the level of the Android devices, Apple must sue the Android OEMs.  However, if Apple is successful that will do just fine to halt the infringing use of Apple’s patented technologies.

Another interesting note about Mr. Drummond’s rant is that he admits that lawsuits from Apple, Oracle, and Microsoft pose an existential threat to Android.  Mr. Drummond says it quite clearly:

“But in this instance we thought it was important to speak out and make it clear that we?re determined to preserve Android as a competitive choice for consumers, by stopping those who are trying to strangle it.”

So if Google is fighting to preserve Android from the IP infringement lawsuit that can destroy it.  And in a pep talk to the troops, Google informs them that Google is determined to preserve Android.

Drummond also lets slip that Google has the herculean task of prevailing in each of the more than 46 IP infringement lawsuits (Google combined with its Android OEMs) so that none of the Android OEMs have to pay further licensing fees for Android, as most of all the major Android OEMs, except for Samsung are already paying Microsoft some royalties.  Mr. Drummond:

“A smartphone might involve as many as 250,000 (largely questionable) patent claims, and our competitors want to impose a ?tax? for these dubious patents that makes Android devices more expensive for consumers.”

Google’s problem with Android is that if either Google and/or its Android OEMs have to pay commercially reasonable royalties for the patents used in Android devices, which is what Mr. Drummond means supra by a tax, Android fails, because it loses all competitive advantage with respect to Microsoft’s Windows Phone 7 and HP’s WebOS.  So neither Google or its Android OEMs can settle more than a few of the infringement cases for a commercially reasonable royalty without Android becoming as or more expensive than its competing mobile operating systems that are available for license, WebOS and Windows Phone 7.  That means Google and its Android OEMs must win outright by invalidating the allegedly infringed patent or by showing that their use of Android does not infringed.  That would be a hard enough trick for one or two strong patents.  But for more than 46 infringement suits?

That is why Mr. Drummond converts royalties into taxes.  Taxes are presumably bad, while royalties are the normal and just practices of paying someone for his IP.  Since Google’s Android OEMs won’t have any preference for Android if they must pay commercially reasonable royalties, royalties become, in Mr. Drummond’s rant, evil taxes instead of Microsoft, Apple, and Oracle either simply wanting to be paid for the use of their intellectual property or to insist that Google and its Android OEMs not use their respective intellectual property without a freely negotiated license, which freedom includes, particularly in Apple?s case, the refusal to license.

BurmaYank

Thank you, Nemo, for that rigorous and invaluable elucidation of Google’s patent predicament and of Google’s obfuscating descriptions/spinifications of its (apparently dire, and rightfully dire) situation. 

Strong work!

I see Drummond’s letterfarce as Fagin, about to be grabbed by the arm of the law from the bosom of his dear adopted family of urchin pickpockets, telling them they are about to lose him & their home because of a conspiracy between the screws and the fat and privileged, to deprive his family of their right to their pocketpickings.

mhikl

Another eloquent post I will save to dt, Nemo. And though John Gruber’s link to Brian S. Hall, ?Google Are Pussies? article shows it to be blocked, here is a work around (copy) that is accessible at this time. Let’s hope it doesn’t get seruptitiously block, as well.

http://mobilitydigest.com/brian-s-hallthe-best-google-tirade-youll-read-google-are-pussies/?utm_source=feedburner&utm_medium=feed&utm_campaign=Feed:+FuzeMobility+(Fuze+Mobility)

meanwhile, I find this all too creepy and have taken my tinfoil hat out of storage.

BurmaYank

Thank you, mhikl, for your work-around to Brian S. Hall’s excellent blocked article!

I’m sure hoping that J. Gruber work-around doesn’t also get blocked by panicking Droid-hordes. So maybe you should heed mhikl, and read it (and save it) quickly, everyone.

BurmaYank

“Just saw this posted on another site. It is from Microsoft?s general counsel…”

Bryan’s response to it is worth checking out.

Neil Anderson

Maybe if they’d bid Apple Pi they would have got it.

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