Google Being More Aggressive About Bad Patents; But Should It Go Even Further?

from the the-evil-of-patents dept

Thu, Aug 4th 2011 4:15am — Mike Masnick

A lot of people are pointing us to Google's latest blog post on patents, in which it very aggressively talks about the danger of bad patents, specifically when it comes to hindering future innovations around Android. Most of the article focuses on theNortel patent purchase, and notes the oddity of Apple and Microsoft actually working together on something (an issue that is raising some Justice Department interest). This follows on Google recently becoming more vocal about problems with the patent system:

A smartphone might involve as many as 250,000 (largely questionable) patent claims, and our competitors want to impose a �tax� for these dubious patents that makes Android devices more expensive for consumers. They want to make it harder for manufacturers to sell Android devices. Instead of competing by building new features or devices, they are fighting through litigation.

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.

A few years back, there were some stories about how Google's legal department was willing to take on big important issues, not just because they would help Google, but because it would strengthen the overall internet and innovation. That obviously would help Google too, but there was a sense that the company would fight for issues beyond just those that impacted Google. In recent years the company seemed to shy away from some of those fights, so it would be interesting to see if fighting against bad patents brings Google back around.

Of course, as some are noting, even as Google is getting vocal, it appears to be pulling some punches -- focusing on the specific patent problems it faces, rather than speaking out against the fundamental problems of the patent system itself. In fact, nearly a month ago, Glyn Moody wrote an excellent piece explaining how Google's best line of attack here would be to go after the very concept of software patents, something the company hasn't shown a willingness to do just yet.

My guess is that the company would certainly be behind an effort to do away with software patents, but that it recognizes that it's a massive uphill battle at this point. Tim Lee, in the Forbes link above, argues that it actually makes a lot of sense for Google to "stick its neck out" on software patents being a problem. Not only would an awful lot of developers (both inside and outside the company) support Google if it came out against software patents, it would also help to establish Google's overall position in its legal battles. Many patent lawsuits are about just getting companies like Google to pay up. If Google takes a public stand that it doesn't believe any software patents are valid, then it also sends a signal that it will fight such shakedown attempts in court as far as it can go. That can help scare off the trolls, who are just hoping for a quick payout.

In the end, I don't think Google will take such a step, but I think it would be a welcome addition to the discussion. In the last few weeks, with the This American Life patent episode and the Economist's recent worries about patents, it seems this issue is finally getting some mainstream recognition. A push from Google might help it go even further, and finally breakthrough the clutter.

Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.

Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.

While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.

–The Techdirt Team

Filed Under: android, patents, software patents
Companies: apple, google, microsoft, nortel

34 Comments

If you liked this post, you may also be interested in...

Reader Comments

Subscribe: RSS

View by: Time | Thread

alex (profile), 4 Aug 2011 @ 4:59am

Interesting stuff.

Do Google have a history of suing other companies for infringing their patents?
[ link to this | view in chronology ]
- Jay (profile), 4 Aug 2011 @ 8:00am
  
  Re:
  They don't. They've tried to buy patents defensively and make them open source, which benefits their bottom line a lot more than suing for X amount of money.
  [ link to this | view in chronology ]
  - Jose_X, 4 Aug 2011 @ 7:46pm
    
    Re: Re:
    I think Red Hat partnered with them recently to appeal a Google patent court loss, which is encouraging, but I fear that they will prefer to take the IBM approach and keep patents around as a potential shield against smaller competitors (or to tax small firms). If Google figures out how to profit from patents, that is bad. To this end, I hope patent trolls continue to hound these large firms until the large firms finally decide to go along with the smaller firms and individual developers to abolish sw pats.
    [ link to this | view in chronology ]
Rich Kulawiec, 4 Aug 2011 @ 5:20am

Destroying the idiotic concept of a software "patent"...
...might be the best contribution Google could make. But, as you observe, it would be a massive uphill fight against the stupid, the myopic, and the greedy. I'm sure they know that; but I'm sure they also know that they are among the few with the resources to tackle the issue.
[ link to this | view in chronology ]
- Ninja (profile), 4 Aug 2011 @ 6:57am
  
  Re: Destroying the idiotic concept of a software "patent"...
  I'll say it again, Google is walking some dangerous path, it has to test drive before going full speed. But it has to maintain the status quo to some degree in orther to survive there. I mean, M$ and Apple have joined forces so other big industries could do that as patents are good for the dinosaurs out there and they are a good portion of the market today. And even Google can't take a joint punching.
  
  Even if it's punching only the patents thrown at them or the smartphone market, they are rising awareness to the problem, which may be good while they don't get punched back (at least not oo much).
  [ link to this | view in chronology ]
  - cjstg (profile), 4 Aug 2011 @ 7:56am
    
    Re: Re: Destroying the idiotic concept of a software "patent"...
    what google really can't afford is to fight a patent claim all the way up the court system and then lose. a supreme court loss would set a legal precedent that could take decades to overcome. they need to pick their battles carefully and takes their losses before the courts rule. at first it will look bad, but eventually the right case will come along.
    
    i think the better approach would be to work on the legislative angle. if google was willing to spend 3 billion on patent, think what 3 billion in lobbyists would buy them.
    
    stop throwing things! i was joking! ...sort of.
    [ link to this | view in chronology ]
    - Jay (profile), 4 Aug 2011 @ 8:20am
      
      Re: Re: Re: Destroying the idiotic concept of a software "patent"...
      I find this quite similar to the battle for civil rights in the 60s. A lot of people believed in the slow and steady route of setting precedents, then slowly changing public perspective on integration in public schools. It's amazing how much the Brown v. Board of Education divided the communities it affected.
      
      A lot of people felt slow progression was the right choice. But it takes so long to bring up enough precedents to cite, to actually change the system for the better.
      
      Google shouldn't back down. In all honesty, it's in the same boat as consumers. The more the internet closes off to Google, the more it closes for us, the end users that fund them. It should be fighting the patent minefield. It should be fighting against the Patriot Act. Google should also fight against the copyright legislative issues, because it weakens Google's position, while strengthening those that don't want change.
      
      Should Google maintain the status quo? Or should it become a disruptive force for it's "don't be evil" moniker? I'd prefer they go with the latter sooner rather than later.
      [ link to this | view in chronology ]
- MichaelG, 4 Aug 2011 @ 8:04am
  
  Re: Destroying the idiotic concept of a software "patent"...
  Why doesn't someone with a large site (like this one) start circulating a petition to software engineers supporting the end of software patents?
  [ link to this | view in chronology ]
  - Josh in CharlotteNC (profile), 4 Aug 2011 @ 8:25am
    
    Re: Re: Destroying the idiotic concept of a software "patent"...
    Online petitions are about as useful as a drunk fan yelling insults to the pitcher at a baseball game. And they effect the laws about as much as that fan effects who wins the game.
    [ link to this | view in chronology ]
Nicedoggy, 4 Aug 2011 @ 5:31am

If people want others to understand what this means, they should translate those problems to other areas where people will be affected by it.

If patents and copyrights where applied to politics would politicians be happy about it?
Could one party stop another from doing something because it was patented? Could political parties be sued for copyright infringement since they often times copy one speech from another, could political processes be patented? Could any politician be stopped by being elected?

Same with law would justice work under those assumptions?

So why is that they want others forced to work under such conditions?
[ link to this | view in chronology ]
- Nicedoggy, 4 Aug 2011 @ 5:57am
  
  Re:
  * Could any politician be stopped from being elected?
  [ link to this | view in chronology ]
Nicedoggy, 4 Aug 2011 @ 5:35am

Also patents and IP law in general affect security.

Microsoft just launched a hunt for security solutions to solve big problems the first focusing on trying to eliminate memory exploits.

Now if Microsoft patents that crap and protects it with copyright could they hold other out for 200 years?
[ link to this | view in chronology ]
- abc gum, 4 Aug 2011 @ 7:13am
  
  Re:
  "Microsoft just launched a hunt for security solutions to solve big problems the first focusing on trying to eliminate memory exploits."
  
  What - like buffer overflow? Eliminate - lol.
  http://en.wikipedia.org/wiki/Buffer_overflow
  
  Buffer overflow mitigation techniques have been around for some time, writing good code is the best solution.
  
  "Now if Microsoft patents that crap and protects it with copyright could they hold other out for 200 years?"
  
  I doubt they will be allowed a patent upon good coding practices, but stranger things have happened.
  [ link to this | view in chronology ]
  - Nicedoggy, 4 Aug 2011 @ 3:13pm
    
    Re: Re:
    What if somebody patents a method and apparatus to write good code?
    
    This thing will eventually create means to identify bad code and anything that complies with "good code" guidelines would probably infringe on that patent.
    
    Silly right?
    Well I thought CSS dropdown menus patents were silly too.
    
    Patents also don't need to be crystal clear they can be vague and broad so I wouldn't laugh that hard just yet.
    [ link to this | view in chronology ]
Scooters (profile), 4 Aug 2011 @ 5:44am

*types in Patent Reform at google.com

*clicks the "I'm Feeling Lucky" button

*goes off to cry in a corner

Despite Google being a powerhouse player, it's unfortunate their size has a drawback by those very politicians who actively seek out bad legislation to pass because, to them, Google is the reason why these laws are made.

They're the evil, not the patent system.

It would be like Goliath asking Congress to do something about rocks because some little shit is throwing them at him for no reason other than the fact he's a giant.
[ link to this | view in chronology ]
- ComputerAddict (profile), 4 Aug 2011 @ 7:32am
  
  Re:
  "do something about rocks because some little shit is throwing them at him for no reason other than the fact he's a giant."
  
  But this IS illegal.. hate crimes like assault, harrasment, etc.
  [ link to this | view in chronology ]
Nicedoggy, 4 Aug 2011 @ 5:46am

Can people imagine having to pay licenses for security fixes to Microsoft?

Would the tax payers be happy to pay billions of dollars in fees just to have access to security tools and keep the government safe?

Not to mention the popular backlash that is already happening.

Lodsys is the first to have been target by a group of individuals.
Method and Apparatus for Kicking Ass

http://fosspatents.blogspot.com/2011/06/two-more-lawsuits-against-lodsys-by-new.html
http: //www.appleinsider.com/articles/11/08/01/indie_developer_organizing_against_lodsys_patent_trolls_wit h_operation_anthill.html
http://www.npr.org/blogs/money/2011/07/26/138576167/when-patents-attack

So Google may get help from the indie population.
[ link to this | view in chronology ]
- Matt (profile), 4 Aug 2011 @ 11:18am
  
  Re:
  You already have to pay for security fixes to Microsoft. You do not pay cash, but they make you click through a new license agreement in which you give up valuable rights. Same same.
  [ link to this | view in chronology ]
Nicedoggy, 4 Aug 2011 @ 6:12am

In a democratic society we wouldn't allow anyone to patent a method and apparatus for electing somebody and get a judge to issue injunctions to stop others from using said method or being elected, is ridiculous, is just unthinkable it would destroy democracy, and here we are with people trying to tell others they can't use something because the law says so even if I do it all with my own personal resources I just can use some process, idea or design, this destroys free market and capitalism, it doesn't work it causes tremendous damage to society and even more to the economy since only a few will ever be able to produce anything and they hoard money instead of putting it to use inside that economy, eventually that will lead to deflation and financial ruin to the USA, just like if patents and copyright were applied to law and politics only a few would be ever capable of holding office destroying democracy and the rule of law.
[ link to this | view in chronology ]
Nicedoggy, 4 Aug 2011 @ 6:24am

Why some people deserve protections and others don't?

Why carpenters, cleaning crews, Judges, police, firefighters, waitress, maids can't have those protections for their contributions for society?

Would it be ok to patent a method and apparatus to fight a house fire and force every firemen to pay for it when it is used?

In every walk of life there is someone developing something to easy his work why should they not get the same protections?

Why is that just a subset of society is given that privilege?

The answer is because those "protections" are harmful.
[ link to this | view in chronology ]
Michael Long (profile), 4 Aug 2011 @ 6:30am

A billion dollar bid that they themselves set, if I recall. And they dropped out a little after three billion.

Quite a bit of money to spend on "bogus" patents.
[ link to this | view in chronology ]
- Rich Kulawiec, 4 Aug 2011 @ 6:42am
  
  Re:
  Check the precise bid amounts. That should be a clue that Google was making a snide comment about the bogosity of this.
  [ link to this | view in chronology ]
- Hulser (profile), 4 Aug 2011 @ 7:15am
  
  Re:
  Quite a bit of money to spend on "bogus" patents.
  
  So, you think that just because a company is willing to pay a lot of money for a patent, that it's automatically legitimate? If so, you just haven't been paying attention. You can search Techdirt for "defensive patent", but here's a good place to start...
  
  http://www.techdirt.com/articles/20110729/03340615311/definition-defensive-patent-is-bad -patent.shtml
  [ link to this | view in chronology ]
- Anonymous Coward, 4 Aug 2011 @ 7:59am
  
  Re:
  You got it right. Google is butthurt because they didn't win them, having made a cool bid at a kewl amount that the 133t kiddies would all get a kick out of.
  
  Since they can't have them, now they don't want anyone else to have them either.
  
  It's funny as heck watching Mike cheering on Google like this. Talk about flip flopping to whoever fulfils you agenda for the day.
  [ link to this | view in chronology ]
  - JMT (profile), 4 Aug 2011 @ 3:46pm
    
    Re: Re:
    Really? That's all you got out of this? You can't see how Google acquiring those patents could've been beneficial for everyone, but instead they will likely benefit a couple of big corporations at the public's expense?
    [ link to this | view in chronology ]
- Almost Anonymous (profile), 4 Aug 2011 @ 8:27am
  
  Re:
  """Quite a bit of money to spend on "bogus" patents."""
  
  No, not really, when the "bogus" laws allow for the filing of countless "bogus" lawsuits for supposed infringement of those "bogus" patents. It's much cheaper and easier to buy them and not have to worry about being threatened with them.
  
  p.s. All software patents are bullshit, period.
  [ link to this | view in chronology ]
out_of_the_blue, 4 Aug 2011 @ 6:45am

YES! "regulatory scrutiny, and this patent bubble will pop"!
Even Google recognizes that REGULATION is the answer to many problems that corporatized grifters and lawyers make. -- Of course, it may be that was said because Google has close ties to gov't and doesn't expect regulation to affect them.
[ link to this | view in chronology ]
- Ninja (profile), 4 Aug 2011 @ 7:20am
  
  Re: YES! "regulatory scrutiny, and this patent bubble will pop"!
  Read the article. You failed yet again.
  [ link to this | view in chronology ]
- Anonymous Coward, 4 Aug 2011 @ 7:41am
  
  Re: YES! "regulatory scrutiny, and this patent bubble will pop"!
  Typical, the only solution to regulations (patents) that fucked everything up is... more regulations! Obviously we need more, look at what a mess everything is!
  [ link to this | view in chronology ]
- velox (profile), 4 Aug 2011 @ 5:27pm
  
  Re: YES! "regulatory scrutiny, and this patent bubble will pop"!
  "Even Google recognizes that REGULATION is the answer to many problems that corporatized grifters and lawyers make. -- Of course, it may be that was said because Google has close ties to gov't and doesn't expect regulation to affect them."
  The very essence of patent law is government intervention in the marketplace. Patents do not exist without government regulation and restriction of market behavior, any more than rain exists without clouds.
  [ link to this | view in chronology ]
Howard the Duck, 4 Aug 2011 @ 7:41am

GOOD NEWS!
Techdirt has had some very upbeat news lately. I hope it keeps rolling. Still waiting for Netflix to announce they've bought HBO.
[ link to this | view in chronology ]
Anonymous Coward, 4 Aug 2011 @ 9:07am

I got an idea. Abolish ALL patents!!!!
[ link to this | view in chronology ]
Gene Cavanaugh (profile), 5 Aug 2011 @ 12:45pm

Patent reform
Good article.
I have been thinking about it a lot, and nearly all modern patents, and certainly ALL software patents, should be abolished.
There is no question, in my mind, that patents the way the founders intended for them to work are good, and encourage innovation, but I know of no mainstream patents of today of any type that are not harming the economy.
And I am an IP attorney.
[ link to this | view in chronology ]
Gene Cavanaugh (profile), 5 Aug 2011 @ 12:45pm

Patent reform
Good article.
I have been thinking about it a lot, and nearly all modern patents, and certainly ALL software patents, should be abolished.
There is no question, in my mind, that patents the way the founders intended for them to work are good, and encourage innovation, but I know of no mainstream patents of today of any type that are not harming the economy.
And I am an IP attorney.
[ link to this | view in chronology ]