Google makes war for itself and Android



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27 October 2011 | 0

Poor old Google seems to be suffering from a bout of victimisation, the condition where the sufferer believes he or she (or it) is being targeted by others and under constant attack. Not so long ago it was the underdog, the new kid on the block with a market pretty much all of its own and the simple but admirable motto of "don’t be evil".

Sadly, this state of affairs couldn’t continue forever. First, there was the launch of Microsoft’s Bing search engine. Admittedly that hasn’t exactly put Google on the ropes or set the search world afire.

Then there was the move into web apps with Google Docs and Spreadsheets (again copied by Microsoft with Office 365), the launch of Google TV (er… we’ll gloss over that one), the introduction of the Chrome web browser and the Android operating system for netbooks, tablets and smartphones (along with the arrival of the ChromeBook) and last, but not least, Google+.

No surprise, then, that Google branched out from its search engine origins and came into competition with lots more companies. That word ‘competition’ is important here because there have been times where it almost seems that Google, having had such an easy ride in the search engine space, believes it is entitled to an almost unopposed run in all its other markets too.




Strange bedfellows
This brings us to last month’s widely reported outburst from Google’s chief legal officer David Drummond (pictured). For those of you who missed the 3 August blog post headlined ‘When patents attack Android’, the tone of the article is set from the beginning when Drummond observes that seeing as Microsoft and Apple have been at each other’s throats for decades, "when they get into bed together you have to start wondering what’s going on".

You sure do David, and thankfully for us you’re on hand to supply the answer: it’s all down to Google and Android. It’s been so successful, you see, that it has sparked "a hostile, organised campaign against Android by Microsoft, Oracle, Apple, and other companies waged through bogus patents". He accuses Microsoft, Apple and others of "banding together" to acquire old patents from Novell and Nortel "to make sure Google didn’t get them".

After accusing them of using patents to stop innovation, Drummond says this "anti- competitive strategy is also escalating the cost of patents way beyond what they’re really worth". As evidence, he cites the fact that the others paid $4.5 billion for Nortel’s patents. According to Drummond, this was "nearly five times larger than the pre-auction estimate of $1 billion". He neglects to mention that Google originally bid $900 million for the patents and that once the proper bidding process began it raised its price to as high as $3 billion (by his reckoning, three times larger than the pre-auction estimate).

Still, you might start to feel aggrieved for Google being set upon by larger and longer established rivals in the IT world, especially if you were inclined to agree with Drummond that they seemed to be ganging up on the search engine giant. Except there was one small detail Drummond was either unaware of or just neglected to mention in his post.

You see in the case of the Novell patents, Microsoft had already offered to let Google join the gang and Google said ‘no thanks’. Microsoft chief counsel Brad Smith posted the following message to Twitter the day after Drummond’s post: "Google says we bought Novell patents to keep them from Google. Really? We asked them to bid jointly with us. They said no."

Just to rub it in, Microsoft PR boss Frank Shaw replied with the following message: "Free advice for David Drummond – next time check with Kent Walker before you blog. :)". The tweet contained a link to a copy of an e-mail from Google’s general counsel Kent Walker to Brad Smith dated 28 October 2010 that states: "After talking with people here, it sounds as though for various reasons a joint bid wouldn’t be advisable for us on this one."

Now it’s very easy to get confused here, as I did, between the two different competitions for the two different sets of patents. So, let’s try to recap. Google lost out in the Novell patent contest to a ‘gang’ that it could have joined but didn’t. Because it didn’t join the gang Google lost out to a higher bid (it happens). Because it wasn’t in the gang, Google didn’t get to share the patents when the gang won. After losing the bid, Google decided it was the gang’s fault it hadn’t joined the gang that outbid it for the patents.

This was amplified tenfold with the Nortel patent auction, where Google made a stalking horse bid of $900 million, raised it to as high as $3 billion, but lost out to the gang. Now there is a sense that Microsoft is trying to blur the edges here because it doesn’t say anything about whether the gang was prepared to bring in Google on the Nortel patent auction. Maybe it was, maybe it wasn’t. Maybe it wasn’t but would have if Google had joined the gang in the earlier acquisition of Novell patents.

Whatever the ins and outs, the fact is Google was given the opportunity to join forces with the people behind the "hostile, organised campaign against Android". That doesn’t sound very hostile to me. Drummond says the whole point of the campaign is to make sure Google didn’t get the patents, but if he’s right I think he needs to explain it to Microsoft and Apple because they don’t seem to be doing it right, especially not in the case of the Novell patents.

The impression I’m getting is that from Google’s perspective if Microsoft, Apple, Oracle and the rest had only just let Google buy all the patents, none of this would have happened. That somehow it’s the height of effrontery to suggest Microsoft, Apple and others should expect Google to share ownership of the patents with them. It’s almost as if they should just trust in Google’s motto: "don’t be evil". With a motto like that, how could competitors have any qualms about giving Google free rein over thousands and thousands of patents?

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