Google: If We Whine, Maybe the Patent Vultures Will Leave Us Alone

Last Updated Jul 27, 2011 3:38 PM EDT

Google (GOOG) has been making the PR rounds. Not for a new product or service, but to complain about software patents. They are "plates of spaghetti" that are "gumming up the works of innovation," says general counsel Kent Walker.

Cold pasta can be gummy, and, heaven knows, whether evidenced by patent trolls lurking under industry bridges or large corporations bludgeoning one another, software patents can muck things up in business. But Google is looking in the wrong direction for the source of its problems. A quick check of a nearby mirror would have been a better use of time.

Patents: not just for legal geeks any more
Are software patents a mess? Absolutely. It's become tough to tell when your work treads onto legal holy ground and makes you the potential target of a suit. Let's put it this way: Things are so bad that the Public Radio International show This American Life devoted an entire show to the suits that patent troll Lodsys has filed.

There's certainly an impact on innovation. Just the threat of going to court could mean literally millions of dollars to mount a defense. For a start-up, it's a Pyrrhic victory at best. Often, it's cheaper to pay a licensing fee, though, as one small troll target put it, the amount can be "just enough to put us in danger but not to close us."

Killing your protection for your own good
But while there are dangers in the system, the companies that yell loudest about software patents are big software corporations that have hundreds or thousands of patents themselves. When is the last time you hear Microsoft (MSFT) or Intel (INTC) mention how some small tech companies have seen big corporations stealing their work and used patent protection to redress the situation?

The resources that such a large company can bring to bear in marketing and distribution make it next to impossible for the little guy to compete, particularly when it no longer can leverage a unique advantage. So, there are two sides to the software patent issue. And there's a third one represented by Google.

Playing by the rules sucks
Google's problem is not that patents prevent it from innovation. Look at how well Apple (AAPL) has done with the iPod, iPhone, and iPad. Sure, Steve Jobs and the gang are in a number of patent disputes -- often brought by them, by the way. But gumming up innovation? No way.

Google recognizes what patents can do. That's why it files for them. But, over the years, the company has often proceeded recklessly when it comes to intellectual property belonging to others. It brings to mind what former Sun Microsystems CEO Jonathan Schwartz once wrote about a run-in with Microsoft when Bill Gates wanted Sun to pay royalties for OpenOffice:

Microsoft is no stranger to imitating successful products, then leveraging their distribution power to eliminate a competitive threat â€" from tablet computing to search engines, their inspiration is often obvious (I'm trying to like Bing, I really am). So when they created their web application platform, .NET, it was obvious their designers had been staring at Java â€" which was exactly my retort. "We've looked at .NET, and you're trampling all over a huge number of Java patents. So what will you pay us for every copy of Windows?" Bill explained the software business was all about building variable revenue streams from a fixed engineering cost base, so royalties didn't fit with their model-- which is to say, it was a short meeting.
If royalties don't fit with variable revenue streams from a fixed engineering cost base, how do they work when you want to give the product, Android, away away and make your money on advertising?

The Google protestations are hollow. All the other big players manage for the most part to bring patents to the table, join cross-licensing agreements, pay fees, and get their products to market. But Google has clearly eschewed the existing mechanisms. If not, it wouldn't be in the position it is today. If intolerance is the last defense of the insecure, is whining the last defense of the lazy?

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Image: Flickr user kaibara87, 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.