Microsoft Calls Out Google Fallacy on Patent Bid

| News

In response to claims from Google that Microsoft conspired to bid on Novell’s patent trove to keep those patents away from Google, Brad Smith, Microsoft’s General Counsel, and Frank Shaw, the company’s Head of Communications, both pointed out that Microsoft had proactively reached out to Google in an attempt to jointly bid on the patents, only to be rejected by Google.

In a blog post, David Drummond, Google’s Senior Vice President and Chief Legal Officer, claimed that his company was a victim of bullying tactics in which Apple, Microsoft, and Oracle were all conspiring to “strangle” Google’s Android platform through the use of “bogus” patents and a broken patent system that no longer encouraged innovation.

This reporter wrote a lengthy opinion piece debunking those claims and Mr. Drummond’s efforts to play victim. Microsoft had its own debunking to do, and the company did so in somewhat mocking fashion.

First, General Counsel Brad Smith tweeted, “Google says we bought Novell patents to keep them from Google. Really? We asked them to bid jointly with us. They said no.”

Then, Frank Shaw, Head of Communications for Big Redmond, tweeted, “Free advice for David Drummond – next time check with Kent Walker before you blog. smile

Free Advice
Microsoft Offers Google Free Advice
(Image Courtesy of iStockPhoto

The Kent Walker he referred to would be Senior Vice President & General Counsel, the other corporate officer that deals with legal stuff for the search giant. Mr. Shaw added a screenshot of an e-mail from Kent Walker to Microsoft’s Brad Smith where he apologized for being slow to respond to Microsoft’s offer of partnering on the Novell patents, and declined that offer.

Brad —

Sorry for the delay in getting back to you — I came down with a 24-hour bug on the way back from San Antonio. After talking with people here, it sounds as though for various reasons a joint bid wouldn’t be advisable for us on this one. But I appreciate your flagging it, and we’re open to discussing other similar opportunities in the future.

I hope the rest of your travels go well, and I look forward to seeing you again soon.

— Kent

In other words, on at least one of Mr. Drummond’s claims of victimhood, that Microsoft had conspired to keep Novell’s patents out of Google’s hands so that they could be used to “strangle” Android is precisely balderdash.

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Comments

mhikl

The plot thickens. Where is John Le Carr?? There is intrigue afoot, akin to watergate that warrants a good book and the usual movie deal. Sure to be a best seller.

I suspect we are seeing but the tip of the ice burg to a very grand theatre of events.

do check out

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)

mike

The 800 pound gorilla is now the new whining bitch! C’mon Google, remember the “Don’t do Evil” bull crap?

BurmaYank

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

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

Bosco (Brad Hutchings)

Bryan, do you have any idea when this smoking gun email was written? Was this after the stalking horse? After Google bid approximately $pi-B? Curious.

geoduck

do check out
http://mobilitydigest.com…etc…etc.

Very good. Very well put. Thanks

b0wz3r

The 800 pound gorilla is now the new whining bitch! C?mon Google, remember the ?Don?t do Evil? bull crap?

ROFLMAO!!!

So true, so true!!!

Nemo

Bosco:  The email was after Google’s initial stalking horse bid of approximately $1 billion but before Microsoft partnered with Apple, after being rejected by Google.

What boggles the mind is what Larry Page was thinking.  He was bidding against Apple, a company with about twice Google’s cash on hand and many times more than Google’s cash flow and profits.  Yet he rejected Microsoft’s offer to combine in the bidding against Apple?  It boggles the mind.  If I were Google’s Board of Directors, I would fire Page for this blatant incompetence and for rejecting Sun’s reported offer to license Java for a mere $100 million.  This is gross incompetence.

And now it may be that Google must settle with Oracle on Oracle’s terms, as it appears that after reviewing Andy Rubin’s email to Page, Brin, and Schmidt, Judge Alsup has warned Google to settle or risk a severe injunction if Oracle prevails in the case in chief.

So based on what he has seen, much of which we are not yet privy to, Judge Alsup has traveled from the position of Google and Oracle haven’t yet proved anything to warning Google that it had better settle the case.

mhikl

Strange occurrence. I have sent emails to a number of people with the address to the copy of the blocked link and they are getting back to me that it is not coming through with the link. Sadly, I used gmail.

I have saved thirty copies of Brian’s article and printed out a copy. So far, they are still intact on my mac and the paper copy has not yet caught on fire.

Scarier still, my little guy keeps knocking his and my tin foil hats off. Is he part of this conspiracy?

Nemo

What is more shocking to me and what will begin, I think, to affect Google’s commercial relations with partners are what I perceive to be Google’s unethical conduct.  I am persuaded from the reports that Google’s then troika of leadership stab Steve Jobs and Apple in the back by deceiving Jobs, Apple’s Board, and/or Apple’s other senior managers about their intent for an Android smartphone, showing Apple’s people a Android smartphone that emulated the then Blackberry, not the iPhone.  Then there has been Google’s duplicitous behavior with the medial companies, as it let users of its YouTube service engage in rampant infringement of the media companies’ content, while collecting ad revenue from YouTube.  And of course, Google did the same with news organization by posting the valuable elements of news stories without either permission or compensation to the most of those news organizations, once again while collecting ad revenues for those new organizations content.  Now, we know that Google was negotiating with Sun for a license to Java, but when the two companies couldn’t agree, Oracle simply went ahead and used Java without a license, hoping that it could later defend that decision.

Given the foregoing, I know that, in dealing with Google, I wouldn’t trust them.  I certainly would not trust Google’s senior management’s respect for others’ intellectual property.  If I dealt with them at all, it would be out of necessity, and then I would have my lawyers make certain that I had an ironclad and readily enforceable agreement that we could take to court to either compel performance and/or receive fully compensatory damages.

And, after being walked into Android’s swamp of Android’s IP infringement suits, I wouldn’t be surprised if Android’s OEMs are starting to feel the same way.

Bosco (Brad Hutchings)

Bosco:? The email was after Google?s initial stalking horse bid of approximately $1 billion but before Microsoft partnered with Apple, after being rejected by Google.

Oh, Nemo, you are making this too easy, yet again. The email in question was sent on October 28, 2010. Google’s stalking horse bid was first reported on April 4, 2011 (April 5, 2011 by the NYT). There is a math lesson in here somewhere.

Now, I’m waiting on Bryan to report the update to Drummond’s blog post that explains the obvious, i.e. how holding the launch codes to nukes with one of your enemies takes them out of play as a retaliatory device against said enemy. But you know, in retrospect now, it probably was a bad play by Google. But who would have guessed that between March 2011 and June 2011, according to comScore, Android would have posted almost 5x the smart phone market share gain of Apple? Who would have guessed that Microsoft would now be collecting $5 on 30% of those sales, and probably making more money for its shareholders from Google’s efforts in this space than from its own?

In 5 years, when we look back at the mobile patent wars, we most definitely will not see Google having initiated any legal battles, and perhaps if Google is fortunate, they’ll be able to dissolve the problem without retaliating. The same can’t be said of Apple, nor of Microsoft really, although the latter’s successful licensing strategy in this cesspool gets a giant “heh”.

geoduck

Interesting reply from Google
http://www.electronista.com/articles/11/08/04/google.says.microsoft.offer.on.nortel.bid.a.trap/

I think they’re saying that MS was trying to trap them because owning these patents would prevent them (the owners) from using these patents to defend themselves from being sued by the patent owners (once again them).

Hows that again?
Law makes my brain hurt.
(aka Mr. Gumby)

RonMacGuy

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

Great stuff.  LMAO.  I’ve saved a copy on my computer for future enjoyment.

Nemo

Bosco:  That is even worse for Google.  That means Google turned down an offer which would have allowed it to enter the bidding with ability to bid above the winning bid of $4.5 billion.  Once again, that was idiocy on the part of Larry Page.

And you initiate legal battles on IP by infringing, for there can be no lasting legal battle without at least prima facie infringement, that is, without pleading allegations of infringement which will stand unless rebutted.

Bosco (Brad Hutchings)

I think they?re saying that MS was trying to trap them because owning these patents would prevent them (the owners) from using these patents to defend themselves from being sued by the patent owners (once again them).

If this is a serious question, here’s a serious answer. Drummond actually wrote today:

?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.?

Some history: Microsoft had settled with HTC in May, 2010 on what is reported to be a $5 per Android device license. Microsoft did this with both carrot and stick. The stick was patents and the carrot was the ability for HTC to make Win Phone 7 devices. Microsoft is reportedly attempting the same licensing approach with Samsung. Google surely needs to be seen by its hardware partners as defending their interests, and unfortunately, going in with Microsoft and winning Nortel would take all leverage Google might have over this style of licensing pressure from Microsoft off the table relative to those patents and its bidding partner.

That’s not spin. I’ve written many many email responses just like Kent’s to offers that weren’t quite right. There’s a formula. You politely inform the recipient that you’re more concerned with your own intolerance to lactose than their offer, say you’re not accepting it, hope to have cookies and milk with him in the future.

Bosco (Brad Hutchings)

Bosco:? That is even worse for Google.? That means Google turned down an offer which would have allowed it to enter the bidding with ability to bid above the winning bid of $4.5 billion.? Once again, that was idiocy on the part of Larry Page.

Nemo, I’d suggest getting a calendar to help manage your facts. Larry Page was not CEO at the time of this letter.

Nemo

Gee Bosco:  If it was wrong for Microsoft to insist that, in true open-source fashion, Google agree not to assert the Nortel patents offensively against others, I am sure that Google will withdraw its complaint to U.S. antitrust regulators that demands the government either void the sale of the Nortel patents to Apple’s consortium or require that Apple and the other members of its consortium either not be allowed to sue Android or Android OEMs for infringement of those Nortel patents or that the Apple’s consortium be forced to license the Nortel patents to everyone, but particularly Google and its Android OEMs, at less than FRAND, fair, commercially reasonable, and non-discriminatory, terms.

Surely Google would want standards applied to Apple’s consortium that it was prepared to accept itself.

Bosco (Brad Hutchings)

Nemo: I can’t parse what you’re getting at there. I just wish you’d can it with the infringement and moralistic crap. Everybody does, it’s unavoidable. There was, at some point, kind of an unwritten rule about how the big guys dealt with this stuff. Maybe it was Kodak, maybe Nokia, maybe Apple that rewrote those rules. But clearly now, the new rules are about targeting Android.

According to comScore trends, Google probably only needs to fend things until Fall, when they’ll own a super-majority of the smart phone market and can then just take their case to consumers and voters, who clearly value the choice Android has delivered that other smart phone platforms have not.

Nemo

And to expand on my point, supra, Google wants the U.S. government to force Apple’s consortium not merely to license the Nortel patents on FRAND terms but to license them for free, after spending $4.5 billion to acquire them.  And the government should do this to guarantee open-source licensing of private property.

A couple of observations.  First, the U.S. Constitution expressly forbids in its Fifth Amendment the taking of private property for a public purpose with out just compensation that reflects the commercial value of the property.  So the U.S. government has no authority to do as Google wishes, that is, take the Apple’s consortium property for free and give it to others, or to even reverse the sale, provided the Apple consortium offers to license on at least FRAND terms.

Second, the Novel matter was distinguishably different.  First, Android really isn’t open-source for a number of reasons.  First, Android appears to applied an open-source licensing to the IP of others to which it had no rights, at least in Oracle v. Google, and I suspect that is true in other cases as well, so for that reason alone Android isn’t open-source.  Also, Google’s licensing of Android to Android OEMs, while not charging a royalty, is anything but open source licensing.  There are all manner of restrictions on the use and availability of Android, some of which would make Apple and Microsoft blush.  And finally, there has been evidence put forward in the open-source community that Google has run roughshod over open-source licensing requirement in licensing several open-source components of Android.  In other words, Android is open-source only when it suits Google for it to be so, and it is not when it’s not.

Yet, Android is an important competitor in the market for smartphones, though one of dubious legality.  Perhaps, the U.S. Government could reverse the sale and force free licensing to Android and others, if Google licensed all of Android?s IP, or at least the non-infringing parts of it, including updates to it, solely under the latest version of the GPL and agreed to keep all of Android under that license, though I doubt that such action by the Government would be constitutional, and of course, Google would never agree to it.  Short of that, the most the U.S. Government may constitutionally do, since the Nortel had the right to sell its private property, its patents, and Apple’s consortium had a right to buy and use those patents, is require Apple’s consortium to license the Nortel patent to all on FRAND terms.  Though, as I said in earlier posts, licensing on FRAND won’t help Google, because such FRAND licensing means that Google can’t compete by offering Android, which contains so much legally dubious IP, for free; that would level the competitive playing field so that Windows Phone 7 and WebOS could fairly compete for smartphone OEM business.

If Google wanted to offer Android for free, it should have built it from scratch using only its own IP.  Having failed to do that, it may not now expect the U.S. Government to bless and abet its effort expropriate the Apple consortium’s Nortel patents for less than they are worth or even for free.

Nemo

Bosco:  Page wasn’t yet CEO, when Google turned down Microsoft, but he was part of the three stooges who did.  Now, the best that Google can hope for are FRAND terms for licensing the Nortel patents, which means that at best Android and/or Android devices will be on equal footing with WebOS and Windows Phone 7.  And an equal, fair competitive fight is one that Android most likely can’t win.

Bosco (Brad Hutchings)

A couple of observations.? First, the U.S. Constitution expressly forbids in its Fifth Amendment the taking of private property for a public purpose with out just compensation that reflects the commercial value of the property.? So the U.S. government has no authority to do as Google wishes, that is, take the Apple?s consortium property for free and give it to others, or to even reverse the sale, provided the Apple consortium offers to license on at least FRAND terms.

And what is a patent but the government taking out of the discoverable public sphere and assigning as property to a private entity? Note that while the Constitution itself places no limits on the 5th Ammendment, it places explicit and strong limits on both the term (paraphrasing “for a limited time”) and purpose (paraphrasing “top promote the arts and sciences”) of these potentially state-enforced monopolies.

A lot of people, self included, fail to see how a bidding process involving $4.5B does anything to promote advancement of anything, other than a proliferation of litigators.

Nemo

Not neither patents or any other IP is the Government taking property of the public sphere, patents and copyrighted works are either inventions or creations of particular persons that were unknown to world before their invention or creation.  What IP rights do is recognize property rights in the inventors and creators to their new inventions and new creations.  So no, copyrighted works and patented invention are not the government removing creations and/or inventions from the public sphere; it is the government saying who has property rights in those works, which are new to the public sphere, as Congress has express authority to do pursuant to U.S. Const. Art. I, Sec. 8, Clause 8.

And because the rights in patents and copyrights are alienable, which, of course, is what gives them much of their value as property, the due holder of those rights can assign or sell some of all of his rights in them.  So Apple’s consortium by duly purchasing the Nortel patents stands in the shoes of the inventors of those patents with all those inventors’ rights pursuant to the U.S. Const. and Title 35 of the United States Code.

BurmaYank

“I just wish you?d can it with the infringement and moralistic crap. Everybody does, it?s unavoidable. There was, at some point, kind of an unwritten rule about how the big guys dealt with this stuff. Maybe it was Kodak, maybe Nokia, maybe Apple that rewrote those rules…”

No, you’re quite wrong to say, “...There was, at some point, kind of an unwritten rule about how the big guys dealt with this stuff” (i.e., infringement). Maybe yes, as you insist, “...Everybody does” (do it); maybe, as you insist, “...it?s unavoidable”; maybe ”...Kodak, maybe Nokia, maybe Apple…did commonly infringe as you suggest.  If so, all of those infringements would always have been against the rules, which were never re-written, and which would always have made all of those infringers guilty & culpable perps whenever they did so, no matter how commonplace those infringements might have been. 

I just wish you?d can it with your delusional anti-moralistic crap.

”... But clearly now, the new rules are about targeting Android…”

And no, it’s obviously also totally untrue that those rules, which have never changed, made any perps (Kodak? Nokia? Apple? Android? etc.) more or less guilty & culpable whenever they infringed than any other who did the same thing.  Whoever is guilty of infringing must expect to pay the penalty - so Android must pay (even with its life?) if it is found guilty.

Nemo

Bosco is full of it.  There is no such unwritten rule that everybody infringes so that there is some sort of gentlemen’s agreement or moral obligation not to sue for infringement.  That is nothing more than one of Google’s talking point that Bosco has adopted as his latest fantasy.  Congress, not some gentlemen’s agreement, makes the law on infringement, and Bosco supposed gentlemen’s agreement can’t be found anywhere in the Patent Act, Title 35 of the United States Code.

But if it wants, Google and/or its Android OEMs are welcomed to try that defense on, I suppose, an estoppel theory, but it seems that Google isn’t interested in trying that nonsense in front of Judge Alsup.  That Google crap is only for the public in general and Bosco in particular.

Bosco (Brad Hutchings)

@BurmaYank: The context of Kodak, Nokia, and Apple were as IP owners who launched their missiles first, not as infringers. The unwritten rules I referred to applied to the first launch. Take that information and try again.

Bosco (Brad Hutchings)

Nemo: If there are no unwritten rules of engagement, then there really is no point in the whole discussion that pretty much everyone is involved in about Google amassing patents to secure a workable MAD posture. Biut whatever. I continue to think that market share is the most important issue here, and for Google, that means Android OS market share, the sum of its hundreds of current product incarnations. Imagine if after all of the arrows shot at them for being a “copier” and an “infringer”, they still end up owning the market and being the provider that could meet the most people’s product needs. Imagine if that victory dwarfs whatever liability they face after protracted battle. Welcome to 4 or 5 years from now.

Nemo

Well, Bosco, look at my last post under Bryan’s story today, “Google: Microsoft is Tricksy, But We?re Too Smart,” where I provide solid evidence that proves that the iPhone, far from petering out, is the number one smartphone in share, profits, and revenues.

And the next iPhone and the latest version of iOS are on the way.

Bosco (Brad Hutchings)

comScore-board. The Verizon unicorn has basically let Apple tread market share water, while the plethora of Android phones continued to, as a whole, rip market share from RIM.

How are your story and my story both consistent with reality? Easy. Smart phones are still a quickly growing market. But market share will be the most important thing as growth slows.

Nemo

Bosco:  The problem for Android is that the future looks bright for the iPhone and not so much for Android.  As a regular reader of TMO, surely your recall TMO’s recent reports that the iPhone is way ahead to all Android phones combine in customers satisfaction, and, this is even more ominous for Android, the number of customers intending to purchase a smartphone in the next three months had the iPhone substantially ahead of all Android phones.  Finally, a large numbers of Verizon’s customers want the next iPhone, while current iPhone users have no intention of switching to Android any other mobile phone.

BurmaYank

@BurmaYank: The context of Kodak, Nokia, and Apple were as IP owners who launched their missiles first, not as infringers. The unwritten rules I referred to applied to the first launch. Take that information and try again.

I’m sorry, but after trying quite hard, I just can?t parse what you?re getting at there.

I take it you’re saying that these “missiles” which those IP owners (Kodak, Nokia, and Apple) “launched first” are patent lawsuits against other tech and/or IP product creators, right?  So then you seem to be saying that before those patent lawsuits against each other were recently launched by those named IP owners, the norm was not to make such suits?  If that’s what you’re really trying to say there (in other ambiguous & inarticulate words), then:
1. That’s ignorant nonsense, but even if it were true,
2. changing or not changing those NeverNeverLand “unwritten rules” forbidding patent lawsuits against other tech and/or IP product creators actually has nothing to do with what you and Nemo were actually discussing (i.e., whether Google’s claims of victimhood from M$ conspiring to deprive Google of Novell?s patents so that they could be used to ?strangle? Android is hypocritical falsehood or a fair summary of the machiavelanly cruel Rock&AHardPlace; dilemma M$ put Google in between needing those patents M$ offered and needing to defend the interests of Google’s hardware partners against M$ patent suits against those partners), when you made your ambiguous comment
3.  “... who launched their missiles first…” obviously could hardly really be what you were referring to when you talked about what “Everybody does, it?s unavoidable” (*see the quote, below)  What possible sense would that make?
.

According to comScore trends, Google probably only needs to fend things until Fall, when they?ll own a super-majority of the smart phone market and can then just take their case to consumers and voters, who clearly value the choice Android has delivered that other smart phone platforms have not.”

No matter how big a super-majority of the smart phone market Android may have when Oracle wins big royalties from all Android OSes/applications (and thus renders droidphones/pads no cheaper than Nokia/Win7s or PalmWebOSes, etc.), that will surely be the end of positive Android marketshare growth. 

No matter how big a super-majority of the smart phone market Android may have when Apple wins against all multitouch-infringing Android EOMs and then refuses to grant any multitouch licenses to anyone, if Google can’t then innovate its own comparable non-infringing work-around UI, that will probably mean the immediate death of all droidphone/pad sales, wherever patent law has any dominion.
.

—————————————————————
* (”I just wish you?d can it with the infringement and moralistic crap. Everybody does, it?s unavoidable. There was, at some point, kind of an unwritten rule about how the big guys dealt with this stuff. Maybe it was Kodak, maybe Nokia, maybe Apple that rewrote those rules?

Bosco (Brad Hutchings)

Dream on BurmaYank. You in particular have been spewing this pipe dream “that ______________ (fill in the blank) will stem the Android tide” for over a year. Whatever you’ve filled in, it hasn’t.

Android is as successful as it is because it gives all stakeholders choice. It’s not Apple’s way or the highway. It doesn’t ban this technology or that technology. It doesn’t ban swimsuits. It doesn’t overlook a 7” tablet factor (like the wildly successful Nook Color) because one guy doesn’t think it’s cool. It doesn’t leave out common external storage because Apple thinks its customers are too stupid to deal with cards they already know how to use from every other CE product they have.

No matter how big a super-majority of the smart phone market Android may have when Apple wins against all multitouch-infringing Android EOMs and then refuses to grant any multitouch licenses to anyone, if Google can?t then innovate its own comparable non-infringing work-around UI, that will probably mean the immediate death of all droidphone/pad sales, wherever patent law has any dominion.

This is where you really don’t understand this game. The multi-touch patents are but a few small drops in an ocean of software patent sewage. Even at this advanced stage in the patent battles, Google can and will scavenge for enough IP nuggets to effectively tie up litigation for half a decade, while it makes plenty of money on the mobile market. I think even Apple understands this and is playing the patent game more from a PR angle (“we innovate, they copy”) than from a realistic legal one.

gslusher

The 800 pound gorilla is now the new whining bitch!

In the real world, gorillas are seldom over 400 lbs. (In captivity, obese male gorillas can get to 600 lb and suffer from heart disease!) On the other hand, adult maie lions are frequently over 400 lbs and have rather effective teeth and claws. They’re also considerably faster than gorillas. (Fortunately for gorillas, lions don’t live where they do.)

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