In the new war of words between Google and Microsoft, Google has fired back at Microsoft’s efforts to use facts to counter Google’s claim of victimhood with an update to a blog post that essentially says that Google was too smart to fall for Microsoft’s dirty tricks.
In case you’ve missed the sparks flying back and forth, this tempest in a teacup started when David Drummond, Google’s Senior Vice President and Chief Legal Officer, accused Apple, Microsoft, and Oracle of conspiring to use “bogus” patents to “strangle” Android rather than compete in the market place through innovation.
In my opinion, Mr. Drummond’s blog post was attempting to cast Google as the victim that was being wronged by a patent-system gone bad, and that patents were being warped and twisted to squelch Google’s innovation.
I took issue to this, and pointed out that Google isn’t innovating with Android, it’s copying, and that this is precisely what the patent system was designed to prevent. One can argue the merits of software patents (I’m generally against them) all one wants, but in the patent battles between Apple, Microsoft, and Oracle against Google and its hardware licensees, the patent system is being used as it was intended, to encourage innovation by keeping copiers from profit off the innovations of others.
Another part of Google’s claim is that Microsoft and Apple (and other companies, including EMC, but not including Oracle), had conspired to buy patents from Novell and Nortel in order to keep them away from Google. This may or may not be true when it comes to the Nortel patents, which were bought by a consortium that included Microsoft, Apple, EMC, and other firms who ended up winning those patents for a staggering chunk of change, US$4.5 billion. Time will tell on the conspiracy charge there.
When it comes to the Novell patents, however, Microsoft fired its own salvo against Google by pointing out that far from Microsoft conspiring to keep Google away from those patents, the company had reached out to Google and offered to partner with the search giant to acquire them.
That was Wednesday, though, and today Google answered Microsoft’s retort with a bold new claim of its own.
That answer was, and I paraphrase, “Nuh-uh!”
OK, I’ll paraphrase a little less: Google’s David Drummond updated his original blog post Thursday afternoon with a note that said Microsoft’s offer to partner on the bids was nothing more than a dirty trick to prevent the search giant from using those patents to defend itself, and that it added insult to injury by trying to get Google to pay for the priviledge of doing so.
“It’s not surprising that Microsoft would want to divert attention by pushing a false ‘gotcha!’ while failing to address the substance of the issues we raised,” Mr. Drummond wrote, perhaps oblivious to having invoked one of the least competent public speakers in modern American politics. “If you think about it, it’s obvious why we turned down Microsoft’s offer.” [Emphasis added]
He explained, “A joint acquisition of the Novell patents that gave all parties a license would have eliminated any protection these patents could offer to Android against attacks from Microsoft and its bidding partners. Making sure that we would be unable to assert these patents to defend Android — and having us pay for the privilege — must have seemed like an ingenious strategy to them.”
“We didn’t fall for it,” he crowed.
Be careful what you wish for, sir, because I’m going to “think about it.”
OK, there. I’ve thought about it, and having thought about it, Mr. Drummond’s comments make me wonder how he got hired at Google as a lawyer. Seriously.
For one thing, even if Microsoft’s reaching out was an effort to neuter Google’s ability to use those patents in its defense of Android, it would only do so against Microsoft’s patent infringement claims, leaving it free to use them to defend against Apple. Of course, we don’t know whether or not this offer of Microsoft’s came before or after Microsoft partnered with Apple to buy them.
Even still, however, there is a far cry between not being able to use them for defending yourself and having them so that others can’t use them against you.
I mean, come on. I’m not an attorney, but then I did “think about it,” as Mr. Drummond encouraged me to do.
There’s an even bigger aspect to his response that just glares out at me like an angry chupacabra. Whether or not Microsoft was trying to be all tricksy and sneaky, Mr. Drummond had claimed that Microsoft was conspiring to keep those patents away from Google.
BUT IT DIDN’T!
Offering to partner in buying something is roughly the exact opposite of conspiring to keep them away from you, and Mr. Drummond’s rebuttal is little more than a sad attempt to obfuscate that reality through deflection.
Rather than embarrassing himself and his company, Mr. Drummond should have amended his original blog post with a mea culpathat acknowledged his mistake. If he wanted he could then have said despite his mistake, things aren’t quite as simple as Microsoft was trying to make it because [blah, blah, blah].
For the record, Mr. Drummond also pointed out that the U.S. Department of Justice intervened in the Novell patent buyout by requiring that the companies that won the patents supply the open-source community with a license for the patents. This is true, and it is the one aspect of Mr. Drummond’s original blog post and his update that actually stands up to “thinking about it.”