Google not falling for Microsoft’s patent sale trick

Well, it’s been a fun 24 hours in the increasingly contentious world of tech patents with Google claiming Android competitors were conspiring to strangle the mobile OS with “bogus” patents only to have Microsoft fire back that it actually offered to go in together with Google on a bid for the Novell wireless patents last year.

While many derided Google for bringing a knife to a gunfight, Google has responded today saying that Microsoft is trying to pull one over on everyone. Google’s David Drummond, Senior Vice President and Chief Legal Officer, said Microsoft’s offer to cooperate on the Novell bid was a “false gotcha,” that wouldn’t have necessarily afforded Google or other Android partners any protection had Google jointly purchased the Novell patents.

“Microsoft’s objective has been to keep from Google and Android device-makers any patents that might be used to defend against their attacks. 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,” Drummond wrote.

What he means is that even if Google had won the Novell patents with Microsoft, Microsoft could have still licensed those same patents to another company, who could have in turn sued Google or other Android licensees. And then the Novell patents would not be a deterrent any more against attacks or would be weak leverage to force a cross-licensing dael.

The Novell patents were eventually bought by Microsoft, Apple, Oracle and EMC. But the Department of Justice in April ordered that the patents should be available for licensing at a fair price. Google is now hoping to get the DOJ to do the same with the Nortel patents, which Apple, RIM, Microsoft and others purchased for $4.5 billion last month, beating out Google in the process, something Google called “anti-competitive strategy.”

Frank Shaw, Microsoft Head of Communications, responded to Drummond’s latest comments on Twitter explaining why he thinks Google turned down Microsoft:

“Because they wanted to buy something that they could use to assert against someone else. So partnering with others reducing patent liability across the industry is not something they wanted to help do.”

Drummond and Shaw raises a good points. Google wouldn’t want to buy something if it didn’t provide blanket protection. But Shaw points out that Google is only interested in using patents to force cross-licensing deals for itself.

The back and forth is certainly entertaining. But it still doesn’t undercut some of the other criticisms that Google has faced in the last day concerning Drummond’s original remarks. As John Gruber and others have pointed out, Drummond is quick to call the patents used to attack Android “bogus” but it didn’t say which ones nor did it explain why it was anti-competitive behavior when Apple and other bid on the Nortel patents but why it would be different if Google had won. And as some like Paul Thurrott have pointed out, Google is able to leverage its dominance in one market to offer a free product in another, disrupting the business of Microsoft, Apple and others.

The fact remains that despite all the rhetoric, Google is in a tough spot. It has to obtain more patent heft. The company continues to rail against the patent system but has to work within it to compete. At some point though, if Google can’t come up with the necessary leverage or protection from regulators, it will have to start paying up. And that, Android’s competitors would probably argue, would not be anti-competitive but would actual restore competition, forcing the formerly free Android to compete against paid operating systems. We’ll just have to see who’s definition of anti-competitive wins out here.

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