Android is in deep trouble on the patent front, and its top lawyer knows it
Google's (goog) chief legal counsel's angry screed on the company's official blog in which he accuses Apple (aapl) and Microsoft (msft) of waging a hostile, organized, anti-competitive campaign against Android through dubious and bogus patents (adjectives all his) may be remembered as one of the most misguided briefs any high-tech lawyer has ever written.
Not that David Drummond is wrong about Google's competitors using the patent system to fight Android. They are. It's that he doesn't have a leg to stand on. Let us count the reasons why.
- Drummond accuses Google's competitors of overpaying for "bogus" patents. But if Nortel's 6,000 patents were bogus, why did Google start the bidding at nearly $1 billion and why was it willing to pay nearly the full $4.5 billion they eventually went for? (See Apple takes the patent wars seriously. Google not so much.)
- He accuses Microsoft and Apple of "get[ting] into bed" to keep Google from getting access to key patents. But Microsoft says Google turned down its offer to jointly bid for some Novell patents, and it has the e-mail to prove it.
- Drummond's post is titled "When patents attack Android." But as Daring Fireball's John Gruber suggests, "It’s not 'patents' that are attacking Android. It’s competing companies whose patents Google has violated — and whose business Android undermines — who are attacking Android."
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"Why did Google blog about patents today?" Techcrunch's MG Siegler asked on Wednesday. "Because the Nortel loss was just the beginning." He points out that Google has joined the bidding for 8,800 patents owned by InterDigital. Google, he writes, "has nearly $40 billion in cash and cash equivalents to spend. But Apple has almost double that. And if Apple teams up with Microsoft again, they’ll have over $100 billion in buying power. At the end of the day, Google will not be able to out-bid Apple, and they’re running out of options."
Drummond says he is encouraged that the Department of Justice is looking into the Nortel patent issue (without mentioning that U.S. regulators are looking even more deeply into alleged anti-competitive behavior on Google's part). But Google hasn't been faring well in the patent courts. Some e-mails turned up last month in Google's patent infringement dispute with Oracle that show Android developer Andy Rubin recommending that Google license Java and being overruled by Sergey Brin and Larry Page.
As FOSS Patents' Florian Mueller reports, when the judge overseeing the case saw the e-mails, he advised Google's legal team to settle out of court: "You are going to be on the losing end of this document with Andy Rubin on the stand. … If willful infringement is found, there are profound implications for a permanent injunction. So you better think about that.”