We'll be honest. Until very recently, the debate over patents seemed on-the-surface pretty complex, fairly industry-specific and kind of dry. Once you dig into it and figure out why companies like Google, Apple and Microsoft are spending billions on obscure software patents, it gets a pretty interesting. But when you add a scathing blog post, a Twitter slap-fight and an army of tech bloggers wide-eyed with glee, the Silicon Valley patent war is downright enthralling.
Wednesday afternoon, Google chief legal officer David Drummond decided to write a blog post about patents. Without mention of his company's recent purchase of over 1,000 IBM patents, the post goes into deep, scathing detail about how "a hostile, organized campaign against Android by Microsoft, Oracle, Apple and other companies, waged through bogus patents" is strangling innovation. "Patents were meant to encourage innovation, but lately they are being used as a weapon to stop it," writes Drummond:
This anti-competitive strategy is also escalating the cost of patents way beyond what they’re really worth. Microsoft and Apple’s winning $4.5 billion for Nortel’s patent portfolio was nearly five times larger than the pre-auction estimate of $1 billion. Fortunately, the law frowns on the accumulation of dubious patents for anti-competitive means--which means these deals are likely to draw regulatory scrutiny, and this patent bubble will pop.
Well, Drummond's boisterous protest did not fall on deaf ears at Microsoft. Wednesday evening, Microsoft general counsel Brad Smith swatted back on Twitter, "Google says we bought Novell patents to keep them from Google. Really? We asked them to bid jointly with us. They said no."
Frank Shaw, head of corporate communications for Microsoft, delivered what feels like a knock-out punch to Drummond's original argument about a "hostile, organized campaign" against Google: an image of an email proving that Google refused to team up with the companies that acquired the Nortel patents. "After talking with people here, it sounds as though for various reasons a joint bid wouldn’t be advisable for us on this one,"
wrote Google general counsel Kent Walker in the email. "But I appreciate your flagging it, and we’re open to discussing other similar opportunities in the future."
Bloggers went wild over the boxing match. "God I love it when Google and Microsoft take these fights to the streets," writes MG Siegler at TechCrunch. "Clearly, we're just at the start of this war of words. We're looking forward to seeing Google's next response," says Jay Yarow at Business Insider. "Make no mistake this is a war, and Google has to bring out every thing it’s got. It doesn’t have much in the way of patent weapons, but at least it’s signaling how hard it’s planning on fighting," explains Ryan Kim at GigaOm.
But even before Microsoft and Google came to blows, long-time tech guru John Gruber threw his own condemning swing:
First, the “estimate” of $1 billion was partially set by Google itself.
Then when the auction actually started, it’s OK for Google to bid over $3.14 billion, but when Apple and Microsoft bid $4.5 billion, that’s “way beyond what they’re really worth”. And if these patents are “bogus”, why was Google willing to pay anything for them, let alone pi billion dollars?
No one other than [Microsoft chief technical office] Nathan Myhrvold and his cronies sees the U.S. patent system as functioning properly, but Google’s hypocrisy here is absurd.
All things considered, it's worth whether Drummond and Google may have started the fight to bring attention to the sometimes overlooked state of patent law in the United States. "And this is the ideal time to do it," says Timothy B. Lee at Forbes. "A far-ranging debate about the merits of software patents in general--rather than the validity of the particular software patents Google allegedly infringes--would be in Google’s interest."
Hypocrisy and absurdity aside, Google is jumpstarting that debate in a thrilling way. It's now their turn respond, and we can't wait to hear what they say.
Update 4:30 p.m. EST: We didn't have to wait too long. Google updated their original blog post in a still unforgiving tone:
It's not surprising that Microsoft would want to divert attention by pushing a false "gotcha!" while failing to address the substance of the issues we raised. If you think about it, it's obvious why we turned down Microsoft’s offer. 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.