A Brief Explanation of Microsoft's Anti-Google Patent FUD

http://www.groklaw.net/article.php?story=20110805154137803

by wglb • 15 years ago

138 113 15 years ago

mavin• 15 years ago

Great article. Some of the better analysis I've read so far

tzs2• 15 years ago

How does she conclude Google tried to buy the Novell patents? I don't see that stated or implied in anything Google or Microsoft said.

If Google is so pure and innocent, why do they invest in Intellectual Ventures?

beernutz• 15 years ago

In response, Brad Smith, Microsoft’s general counsel tweeted, "Google says we bought NOVELL patents to keep them from Google. Really? We asked them to bid jointly with us. They said no."

drivebyacct25• 15 years ago

That's mentioned in the article and has been posted several times. Even that tweet doesn't imply that Google actively vied for the patents, though, in my opinion, that's a pretty fair assumption.

This thread features a wider breadth of discussion about that particular tweet, in case you or anyone else might have missed it: http://news.ycombinator.com/item?id=2844722

koalaman• 15 years ago

My understanding, and I could be wrong here, is that Intellectual Ventures lists the companies that bought protection from it as 'Investors'.

ditojim• 15 years ago

thanks for brining clarity to this situation. why does microsoft consistently belittle the general public by making misleading statements? they are just dishonest people who bash others as a way of furthering their own products. i have grown increasingly anti-microsoft as a result, to the point where i refuse to buy their software or products, and discourage anyone else from doing so.

ddlatham• 15 years ago

Exactly. What good are patents for deterring suits if those suing you have a license to them too?

Terretta5• 15 years ago

Tremendous amount of deliberate misdirection in this piece. Some of it isn't even masked. "What does Google's note mean? Let's let them translate using their after-the-fact interpretation tailored for this current fight..." How does that clarify anything?

And this gem:

And if you look at the mobile litigation going on as we speak, ask yourself: who is suing and who is being sued? Does it look coordinated to you? It does to me. It's always the same direction. Android gets sued. Sometimes it's the vendors. Sometimes it's Google.

So either the author is completely unaware of the field being written about, or the author is lying.

cageface• 15 years ago

How is the second claim inaccurate? I'm aware of a few retaliatory counter-suits but none that were initiated from the Android side.

Terretta5• 15 years ago

Vivid picture of this so called "coordination" showing that claim is complete B.S.:

http://www.flickr.com/photos/floorsixtyfour/5061246255/

So "does it look coordinated to you?" On the contrary, it's chaos, but Google wanted in, really badly. Well, this isn't their daddy's monopoly, and it's not all about them.

(Also, in general, the newcomer doesn't assert patents against the old guard. It's not a conspiracy -- Google just got here last.)

Google, to fix this, stop whining about a few players amassing more toys at 5x the estimate when you only bid 4x the estimate, and do something about disarming the weapons instead.

Don't like "bogus" patents because they were invented before you thought of making a phone and you didn't get them for pi? Boo hoo.

Don't like patents at all? Great, let's go there.

tzs2• 15 years ago

That's because there isn't an Android side. There's an HTC side, and a Samsung side, and a Motorola side, and so on.

felixc• 15 years ago

Can you point to some examples of Google suing other mobile device manufacturers? If so, how many of them are offensive suits, and how many are defensive moves in response to being sued first?

Terretta5• 15 years ago

The last to enter a space doesn't generally sue the incumbents, it's true.

Your point also holds true of Apple, and many of the other companies on that chart who only began to play this game after attacked.

incosta13• 15 years ago

So Apple and MS are anticompetitive?

Isn't Google being anticompetitive by effectively dumping the Android phones to the world markets (and then boasting how many copies are activated each day?) Google has played this game of offering "free" services and this worked for them well in terms of crushing smaller companies who just did not have resources to fire back. But this is not the case with big guys like Apple and Microsoft. Google was very naive thinking it will flood the market with cheap Android phones and Apple will just sit and watch. Google can expect to make money off ads, but Apple cannot. So they use patents to make it more difficult for Google to do what they want. Very simple.

In other industries there are anti-dumping laws and regulations, because dumping is considered an illegal way to kill competition. Google has been doing this for years, because their primary source of revenue is ads. To be honest, I don't have much sympathy to Google, not in this case.

drivebyacct25• 15 years ago

Google doesn't ship phones, phones aren't free (there's always some cost, contracts, etc), and how is a freemium model anticompetitive?

You're justifying Apple suing Samsung for proceeds from Android sales by saying, effectively, it's hard to compete with open source software? Or am I mistaken?

incosta13• 15 years ago

Phones are not free, but Google offers Android licenses to phone makers for cheap. This leads to lower prices for phones. Yes, it's dumping because many of these phones are sold below what they actually cost to make if you take software development costs into account. This is classic definition of dumping.

I have to admit I don't know much about Apple vs Samsung lawsuit. But some Samsung Android phones sure look just like copies of iPhone to me. I am not surprised Apple has been irritated by this.

shriphani2• 15 years ago

Your problem as a consumer is that someone's actively innovating 50% of the cellphone experience for free (hardware is not in Google's control)?

I am really confused how giving something for free went from being nice to "anticompetitive jerk".

Are you saying that you will reject a product because it is free?

edit : wrong punctuation used

incosta13• 15 years ago

Oh so Google is offering stuff free because it's being nice! Very funny. I guess MS was also then being nice by offering IE for free to everyone? They did it because they were nice, not because they wanted to have everyone who offered non-free alternatives marginalized and killed, right?

azakai• 15 years ago

> Google can expect to make money off ads, but Apple cannot. So they use patents to make it more difficult for Google to do what they want. Very simple.

> In other industries there are anti-dumping laws and regulations, because dumping is considered an illegal way to kill competition.

I have sympathy for the dumping argument. However, it doesn't justify an attack via frivolous patents. The end doesn't justify the means.

The fact that any company, from a new startup to Google, can be attacked in an unfair way by patents is bad for the industry. Especially when the dominant powers can coordinate to crush any new competitor. If Google can't disrupt the smartphone OS market because of patents, how could you or I?

If Google is in fact guilty of dumping here - and it might, I don't want to prejudge - then there are as you said existing laws to deal with that. Let that process sort it out.

technoslut• 15 years ago

This is a very odd article to say the least.

Why is it disturbing that Google is unable to buy these patents? These patents were sold to the highest bidder and the bidders were approved by the gov't.

How are MS, Apple & Oracle unpatriotic in bidding against Google for patents? Last time I checked Google, Apple & MS all have their cash in tax havens overseas. That, to me, sounds unpatriotic.

Why are these three companies specifically to blame for the bogus patents that are thrown out in court? This seems to put the blame squarely on the shoulders of the USPTO for even validating them. There are also the claims that were found valid in the courts. Are they bogus as well?

Has Apple or MS sued OHA members with these purchased patents? I realize the situation with Oracle is far more in the gray but it seems Apple has sued with patents they applied for and used in their products. Why should Google have the benefit of purchasing patents to leverage against Apple & Microsoft's own patents?

yobbobandana• 15 years ago

Microsoft has previously been accused of "misusing patents to further an anticompetitive scheme against Android". Here's a link to the relevant article on groklaw:

http://www.groklaw.net/article.php?story=20110427052238659

Disregarding your comments on patriotism and the USPTO (which I don't fully disagree with), the disturbing part about Google being unable to buy these patents, is that they appear to have been actively collaborated against in the auctions. Not being able to build a substantial patent portfolio denies them the ability to countersue in response to frivolous patent threats against Android, which I assume is a large part of why Google was willing to bid so highly for them.

Personally the part of the recent auction I found most disturbing was that the patents weren't sold to the highest bidder, they were sold to a conglomeration of bidders, some of which had already tapped out. To make a parallel with an art auction, it would be like half of the bidding floor banding together simply to ensure that another promiment bidder didn't get the piece. Possibly a valid action, but possibly anticompetitive, depending on the situation.

ashishgandhi3• 15 years ago

"To make a parallel with an art auction, it would be like half of the bidding floor banding together simply to ensure that another promiment bidder didn't get the piece."

Except that the "another prominent bidder" was invited to join the party but the bidder refused. If groups were forming, they were forming. If Google did not want to join, they did not want to join. But if they want to complain about others forming groups when it's legal - I'm not sure if one should have sympathy for them.

switch• 15 years ago

It's interesting how people are choosing to first pick what company they want to be right, and then bending things to suit their desired reality.

Why can't people just say - Here's a situation and a company that I think is the Do'est No'est Evil'est company of all time is being a sore loser.

Google bid on the patents and it lost. It's a bit ridiculous to now claim some sort of divine right to be above patent law.

Also, FYI, google has a patent on their doodles. It's the height of hypocrisy to claim that patents for telecom technology aren't fair and at the same time patent a set of doodles.

bagacrap• 15 years ago

there's a line between holding patents for (ostensibly) defensive purposes and actively using them for litigation against your competitors. The article that you didn't bother to read makes this point somewhere in the middle.

rodion_89• 15 years ago

I'm curious as to what Google's history of active patent litigation has been. A lot has been said about them wanting to hold patents for defensive purposes and I wonder how that holds up against their legal history as I have no idea myself.

oflannabhra• 15 years ago

Rtfa. The main premise is that the issue Google is raising is one concerning antitrust law, not patent law.

bandushrew5• 15 years ago

Im not choosing the company I want to be right, I am choosing the opinion. Any company that argues against software patents is on my side. Any company that argues for them, or uses them offensively, is on the other side.

When Microsoft argued against patents, they were on my side. When they use them against other companies, they are on the other side.

Honestly, I dont care a whit what the company is, software patents are bad and if they want me on their side, they will say so, loudly.

chrisbolt• 15 years ago

Why do you so easily let Microsoft switch sides?

mstepniowski5• 15 years ago

This time Microsoft was on your side, as they've banded with several other companies in order to buy Novell (and Nortel) patents cheaply, making sure that patent trolls won't acquire the patents and minimalising their effect on the industry (assuming that the new patents would then be only used for "defense", as there is no reason to think otherwise).

The plan would have worked, if not for Google which made the price of patents skyrocket.

gaius2• 15 years ago

Yes, everyone seems to have forgotten that Google isn't some scrappy freedom-loving underdog. They've 20,000 engineers, some shady tax practices and are happy enough to play IP games when it suits them. They are just another corporation (now).

SwellJoe5• 15 years ago

I'd like to see a reference on Google playing IP games, that was not in response to another company starting an IP war.

nextparadigms3• 15 years ago

"If Google doesn't have enough money to buy up patents, who does? Twice it has tried and been outbid, not by a single competitor but by a group of them joining together. In fact, that's where, to me, the real antitrust issue surfaces, that by joining together to squeeze Google out of two auctions, Google's competitors appear to have been plotting against it in ways that really must invite scrutiny, which, by all reports is now happening again."

I think this is the main point of this story and this whole issue, and that's what Google wanted to show us. If Google can't even get patents to protect themselves, because all the others keep banding together and not letting them win any auction, then something is very wrong here.

You may say, yeah but then why doesn't Android have its own patents? Well, I don't think it would've been possible for them to get that many patents in this short amount of time, and I don't think it would've been possible for Apple either.

Look at Apple, they are winning with patents not related to smartphones. If Apple wasn't this 30 year old computer company, their patent chest would've probably been close to zero, and a lot of these companies would've come after them, too.

Here's a look at the mobile patents everyone has. You can see Google is not in top 10, but take a closer look - neither is Apple.

http://www.businessweek.com/magazine/the-biggest-ip-war-ches...

So what would've happened if Apple didn't have any of their computers patents from before, and they actually were a new smartphone company? They would've probably gotten sued into oblivion as well, especially since they seem to make a lot of money from iPhones. Their handful of mobile patents would've meant nothing in the face of the mobile patent war chest of Nokia, Samsung, Microsoft, HP(Palm patents) and Motorola.

You can't create something as complex as a smartphone and a smartphone OS today, without infringing a ton of patents. So if a new mobile company can be crushed because others have more patents than them, then what does that say about the patent system? It says the patent system does nothing to protect and encourage innovation, but it lets the big incumbent companies crush the new guys with their large patent war chests. It's bad enough when it's just one of them, it's much worse when they all join together against that company.

If you can't build anything complex, without being a 10+ year old company (in that market) and not having thousands of patents - then something is very wrong with the patent system that was supposed to help start-ups and innovation. I think they all know this, but since they know they have the upper hand with current broken system, they will fight to maintain the current system.

mstepniowski5• 15 years ago

Patents are not used for crushing other companies. They are used for getting a fair recompensation for the IP you have created. That usually means licensing fees. Apple has acquired several licenses for their use in iOS (well-known example: h264) and, guess what, they are not whining about it.

Acquiring "bogus" patents in order to defend from legitimate ones you infringe upon is plainly evil as it twists the whole patent system (and is one of the reasons why our current patent system is broken). Incidentally, that's what Google planned to do. That doesn't automatically mean they are now an evil corporation, but it's not fair to describe the whole scheme as righteous. It's just business.

bandushrew5• 15 years ago

I dont understand how you can tell bogus patents from legitimate ones? legally speaking, they all look the same to me. could you give me a run down on the differences?

michaelcampbell• 15 years ago

> Patents are not used for crushing other companies. They are used for getting a fair recompensation for the IP you have created.

That's the idea, but not the practice. Nathan Myrhvold comes to mind.

TimRichardUK• 15 years ago

Interesting link...

#4, #6, #8 and #9 are Open Handset Alliance members. I'm surprised they don't use their IP collectively to protect the platform.

brudgers3• 15 years ago

>"If Google can't even get patents to protect themselves, because all the others keep banding together and not letting them win any auction, then something is very wrong here."

There may be more than one thing wrong, and one of those things is Google may not be appropriately organized to operate in some of the markets it has chosen to enter - e.g. the mobile phone industry. Their corporate strategy for the search and advertising services upon which the company was built is centered around trade secrets - and that makes a lot of sense given the sausage factory model upon which they have built those services.

Unfortunately for Google, telecommunications doesn't work that way and never has - that's why Nortel had such a big patent portfolio and why Bell Labs did things like patent Shockley's work on the transistor. This is why it takes longer for more mature companies to bring competitive products to a new market segment - e.g. HP felt it prudent to acquire WebOS before head to head competition with the iPad and Microsoft's WP7 doesn't look and feel like iOS.

In a nutshell, Google's problem is that in the telecommunications industry, they did not innovate through a traditional R&D process. Instead, they appear to have rushed the development of Android without proper due diligence in order to be first to market with (operational and technical merits of Android aside) what could be called an "iPhone knockoff". Now that lack of due diligence is coming back to bite them.

<speculation>Could it be that senior Google leadership's fascination with the Sidekick which led to Android lead developer Andy Rubin's being brought onboard led to the damn the torpedoes approach to IP surrounding Android? And could it be that the patents upon which Microsoft's license strategy for Android is base came from their acquisition of Rubin's former startup, Danger, which he left in order to found Android? </speculation>

extension2• 15 years ago

What should they have done differently? Wait 10 years until they amass their own patent portfolio? Android could have been less similar to iPhone, but up against tens of thousands of bogus patents, would that really make a difference? Anything that was competitive would have provoked an attack.

Frankly, it should be ok to enter the market the way Google did.

joe_the_user• 15 years ago

...one of those things is Google may not be appropriately organized to operate in some of the markets it has chosen to enter...

Uh, Google is organized enough to create a profitable OS which well on the way to becoming the dominant smart phone OS in the world.

"Appropriately" here would mean that "organized to join the patent mafia"?

nitrogen9• 15 years ago

There may be more than one thing wrong, and one of those things is Google may not be appropriately organized to operate in some of the markets it has chosen to enter - e.g. the mobile phone industry.

This really irks anyone who, like me, believes that the only limitations on a tech company should be from the laws of physics, the current state of technology, and basic ethics (e.g. don't blatantly rip off competitors).

Instead, they appear to have rushed the development of Android without proper due diligence in order to be first to market with (operational and technical merits of Android aside) what could be called an "iPhone knockoff".

Android was under development years before the iPhone was announced. Google bought Android before iPhone development started. The Openmoko project was also announced before the iPhone was announced. The iPhone is simply a single (very good) implementation of an idea that had been brewing in the mind of the Technium.

kenjackson5• 15 years ago

Look at Apple, they are winning with patents not related to smartphones.

I am tired of this straight out lie. See this article:

http://thisismynext.com/2011/04/19/apple-sues-samsung-analys...

Lets look at what Apple is using against Samsung:

Trade dress infringement under 15 U.S.C. § 1125 and Federal trade dress infringement under 15 U.S.C. § 1114 -- both of these are directly related to the physical design of the iPhone and iPad.

Trademare infringement on logos: •No. 3,886,196 is the iOS phone app icon. •No. 3,889,642 is the iOS messaging app icon. •No. 3,886,200 is the iOS photos app icon. •No. 3,889,685 is the iOS settings app icon. •No. 3,886,169 is the iOS notes app icon. • No. 3,886,197 is the iOS contacts icon. •Pending No. 85/041,463 is the iTunes icon, which is a riff on U.S. Registration No. 2,935,038, the desktop iTunes logo.

All of those are iOS logos, except an iTunes logo.

Now you might be saying, those aren't patents. True. So lets look at the patents:

D627,790: Graphical User Interface For a Display Screen or Portion Thereof -- filing date: 2007. It's a design patent for their home screen on iOS

D602,016: Electronic Device -- filing date: 2010. This is the design of the shell of the 3g/3gs.

#D618,677: Electronic Device -- filing date: 2008. This is the design of screen and buttons of the 3g/3gs.

Patent #6,493,002: Method and Apparatus for Displaying and Accessing Control and Status Information in a Computer System -- filed 1997. This is really the only patent used against Samsung that is a direct result of their work on MacOS, rather than iOS. I'd argue that this is the only patent in support of your thesis.

Patent #7,469,381: List Scrolling and Document Translation, Scaling and Rotation on a Touch-Screen Display -- filing date: 2003. One of the first patents presumed to be part of their iOS portfolio.

Patent #7,669,134: Method and Apparatus For Displaying Information During An Instant Messaging Session -- filed 2003, although not strictly an iOS patent.

Patent #7,812,828: Ellipse Fitting For Multi-Touch Surfaces -- filed 2007. A very iPhone focused patent.

Patent #7,844,915: Application programming interfaces for scrolling operations -- filed 2007. This is about user feedback during gesture based scrolling operations.

Patent #7,853,891: Method and apparatus for displaying a window for a user interface -- filed 2008. This is related to their iOS window management.

Patent #7,863,533: Cantilevered push button having multiple contacts and fulcrums -- filed in 2008. This is a utility patent on their volume rocker in the 3g/3gs.

My point? The VAST majority of the claims against Samsung are directly smartphone related. The VAST majority a direct result of their work on the iPhone.

As I've noted in other posts, Jobs telegraphed his intention back in 2007 at the iPhone unveiling. See http://www.engadget.com/2007/01/09/live-from-macworld-2007-s.... Quoted from Engadget, but I'm sure paraphrased from Jobs, "So let's not use a stylus, we're going to use the best pointing device in the world -- our fingers. We have invented a new technology called multi-touch. It works like magic, you don't need a stylus, far more accurate than any interface ever shipped, it ignores touches, mutli-finger gestures, and BOY have we patented it!"

There's no reason why Android shouldn't have built up similar IP protection in this time. This is why I say whoever ran their IP strategy should be shown the door. This is a firing offense to find yourself in a position where the only way to protect yourself is not to assert your own IP, but to have to resort to buying IP you didn't create.

kenjackson5• 15 years ago

You gotta love the downvotes, with no actual argument against it. Heck, I'd even love a post to show that I'm violating some HN ettiquette (maybe there's ettiquette on HN now that its frowned upon trying to use data to back up your claims?). I suspect this has more to do with ideology/fanboyism than actual content, but I'd love to be proven wrong.

nr0mx• 15 years ago

"... find yourself in a position where the only way to protect yourself is not to assert your own IP, but to have to resort to buying IP you didn't create."

True to a point. But isn't it telling that Apple had to resort to buying IP it didn't create? What does that tell you?

brudgers3• 15 years ago

>"It's always the same direction. Android gets sued. Sometimes it's the vendors. Sometimes it's Google."

It could be a vast secret illegal conspiracy against Google. It could also be that Android infringed on a lot of IP during the damn the torpedoes rush to be the first iPhone competitor. Analysis using Occam's razor and an understanding of human nature is left as an exercise for the reader.

Pewpewarrows• 15 years ago

That's entirely possible. Then again, I can't imagine a single non-trivial piece of software that doesn't end up stepping on IP toes left and right. If you take a look at some of the overly broad patents many companies have been granted over the years, you can't help but violate them, even when writing trivial algorithms.

gord• 15 years ago

Where would we be if Tim Berners Lee had patented http ?

Google need to win the 'make patents irrelevant' battle not the 'my bullshit patent portfolio is larger than your bullshit patent portfolio' battle.

A Brief Explanation of Microsoft's Anti-Google Patent FUD

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