Google Gets Caught Blaming Others for Its Patent Woes [Update]

Last Updated Aug 5, 2011 12:04 PM EDT

In the patent wars between Google (GOOG) and the rest of the high tech industry, the search giant has just lost another round. This time it was in the court of public opinion, as Google's top lawyer blogged about how unfairly competitors were using patents to attack Android and stifle innovation. Only, the knockout blow actually came from Google itself.

Microsoft (MSFT), Apple (AAPL), Oracle (ORCL), and others have slapped Google and its Android hardware partners around with one patent infringement lawsuit after another. Google, no novice to the patent process, lacked the deep portfolio of patents in computing and wireless to put off competitors that wanted to sue it for infringement.

My lawyer can beat up your lawyer
The more patents you can use in a retaliatory lawsuit, the more readily the other guy will consider negotiating a reasonable conclusion. Amazing, no? That's why Google made a play for the Nortel patents that were up for auction as part of the Canadian company's bankruptcy process. Lots of patents in wireless could have come in handy. Only, Microsoft, Apple, Oracle, and RIM outbid Google.

Even earlier, Google saw Microsoft, Apple, and others pick up key patents from Novell, which could also come in handy during a patent fight. The search giant did recently buy a large block of patents from IBM in a stealth purchase that could cause some problems for its competitors, but it's still outgunned.
When you can't beat 'em, complain
So Google started a PR campaign that Google has undertaken to get consumers to see it as the innocent and aggrieved party. First came a blog post decrying the need of patent portfolios to safeguard innovation. And then, yesterday, Google chief legal officer David Drummond wrote a blog post attacking its competitors, saying that they worked together to keep the Novell and Nortel patents, out of Google's hands:
They're doing this by banding together to acquire Novell's old patents (the "CPTN" group including Microsoft and Apple) and Nortel's old patents (the "Rockstar" group including Microsoft and Apple), to make sure Google didn't get them; seeking $15 licensing fees for every Android device; attempting to make it more expensive for phone manufacturers to license Android (which we provide free of charge) than Windows Phone 7; and even suing Barnes & Noble, HTC, Motorola, and Samsung. Patents were meant to encourage innovation, but lately they are being used as a weapon to stop it.
Google has a point. It's been obvious that Apple and Microsoft in particular have wanted to twist the arms of the company's hardware partners in a long-term strategy to reduce Android's chances in the market. But if you're going to take public aim, make sure your publicity weapon doesn't backfire on you. Because that's exactly what happened.

Are you going to believe me or that lyin' email?
Someone at Microsoft dug up an email that Google counsel Kent Walker sent to Microsoft's general counsel Brad Smith in which he appeared to have turned down an offer to go in on the Novell patents. If that is the correct interpretation and the email is genuine, then the wounded heart dramatics ring hollow and aren't any more effective than Google and its hardware partners have been in court so far.

In other words, once again it would be a case of Google shooting itself in the foot on the patent front. The company appears to be sloppy. And not many people have sympathy for organizations that can be their own worst enemies.

[Update: Google managed to sink even deeper into the PR muck hole it's dug for itself when Drummond later updated the post. He admitted that Microsoft had made the offer, but 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."

Poppycock. A joint license would have given Google protection against being attacked by Microsoft, Apple, et. al. from these patents. What Google would have wanted was a block of patents to call its own so it could then go after its competitors, just like they are doing to it.

Maybe the IBM patents will satisfy Google. Or maybe the company might consider working with others for a degree of peaceful co-existence. But then, Android would have per-license costs and Google couldn't use the business strategy it would like of seeding the market with free licenses to all.

If Google does get to dominate the market, will it continue to give Android away? That's a hell of a bet for a hardware vendor to make.]

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Image: Flickr user !anaughty!, CC 2.0.
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    Erik Sherman is a widely published writer and editor who also does select ghosting and corporate work. The views expressed in this column belong to Sherman and do not represent the views of CBS Interactive. Follow him on Twitter at @ErikSherman or on Facebook.