Google vs Microsoft: a second round

The public argument between the corporate counsel of Google and Microsoft has continued into a second round. Google had accused Microsoft and others of waging a "hostile organized campaign against Android" which was being "waged through bogus patents". Microsoft's Brad Smith pointed out that Google had been invited to join Microsoft's CPTN consortium for purchasing the Novell patents but had said no.

Drummond updated his original official Google blog posting to add an update calling Microsoft's response a "false 'gotcha!'" but confirming that Microsoft's allegation was correct: Google were invited to join the CPTN consortium to purchase Novell's 822 patents. Google's counsel explained that the company rejected this option because "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". It was an ingenious strategy to make Google pay for the privilege of not being able to assert the patents, said Drummond, but "We didn't fall for it".

Microsoft's Frank Shaw, Head of Communications, stepped in to respond, in a series (1, 2, 3, 4) of messages on Twitter. Shaw says the only reason Google wanted to own the Novell patents was to assert the patents against someone else. He closes with "SO partnering with others & reducing patent liability across industry is not something they wanted to help do".

Patent consortia, made up of companies who group together to buy large blocks of patents, are not new. They often operate by purchasing as a group then cross licensing all the patents within the group. With that established, the patents are then resold either by the consortium or its members. This allows the consortium members to immunise themselves from the possibility of infringing the patents in the future and stop the patents immediately falling into the hands of competitors or patent trolls (companies that exist only to sue other companies for infringements of patents they have purchased). The patents, when sold on by the consortia, can often end up in the hands of patent trolls. An example of this part of the process being thwarted is covered in a The H feature from 2009, Patently Opaque.

If that was the planned strategy for the CPTN consortium, it never came to pass because the Department of Justice intervened and forced the CPTN partners to give the patents an open source licence and made Microsoft sell any patents it had acquired. The DoJ is reportedly investigating the winners of the recent Nortel patent auction for over 6,000 patents, which Google lost to a Microsoft, Apple, Sony, EMC, RIM and Ericsson consortium. A new patent auction battle is also approaching as Apple, Google and others prepare to bid for 8,000 InterDigital patents.

(djwm)