Google, Microsoft, Patents... And How To Dupe The Press With Out Of Context Statements

from the context-matters dept

Thu, Aug 4th 2011 4:06pm — Mike Masnick

We already wrote about Google's more aggressive statements on the problems of the patent system. Unfortunately, in the last day or so, it appears that Microsoft was able to hijack the conversation, using what appear to be out of context statements, which the press and some bloggers are lapping up and repeating. After the initial blog post, Microsoft's General Counsel Brad Smith tweeted:

Google says we bought Novell patents to keep them from Google. Really? We asked them to bid jointly with us. They said no.

Soon after this, Microsoft's communications chief mockingly tweeted:

Free advice for David Drummond � next time check with Kent Walker before you blog. :)

Drummond, Google's chief legal officer wrote the blog post. Kent Walker is Google's General Counsel. Shaw also posted a photo of an email, which read as follows:

Brad �

Sorry for the delay in getting back to you � I came down with a 24-hour bug on the way back from San Antonio. After talking with people here, it sounds as though for various reasons a joint bid wouldn�t be advisable for us on this one. But I appreciate your flagging it, and we�re open to discussing other similar opportunities in the future.

I hope the rest of your travels go well, and I look forward to seeing you again soon.

� Kent

This was from October 28, 2010, and was in regards to the Novell patent purchase (not the recent Nortel patent purchase, though some seem to be missing that).

Not surprisingly, when presented in this fashion, some bloggers and the press are claiming that this is tremendously embarrassing for Google. TechCrunch had a post that, which, according to the URL, may have originally been titled "Microsoft Just Kicked Google in The Nuts," but whose final title was only slightly more tame: Google Threw A Punch, Microsoft Fires Back With A Missile. PC World said Google Shows How Not to Complain. Plenty of others talked about just how "embarrassing" this was for Google.

I will agree that those who only looked at the points Microsoft tossed out, without looking at the larger context, might say that this is embarrassing -- and Google potentially should have preempted such a response. But, come on. Anyone who's paying attention knows that Google could not team up with Microsoft to buy patents. Think of how quickly the Justice Department would be all over that. They'd never let it happen, and the top lawyers at both firms know this -- as should any reporters writing about this story.

Google has now updated its blog post in response, noting how this is a cheap attempt at playing false "gotcha!" games, and also pointing out why (beyond the antitrust issue) Microsoft's "offer" was disingenuous:

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.

Tragically, Microsoft's response is now distracting from the key important point: just how damaging patents have become to the entire industry... including to Microsoft. The decision by Smith and Shaw to score cheap quick points with the press, at the expense of improving the patent system, may have felt good at the time, but it's going to come back and bite them. There is a real opportunity to fix the patent system in the near future, and Microsoft, which used to be interested in such things, appears to be backing away from it, while also ramping up its own patent threats and lawsuits. Once again, I'm reminded of the old saying that "those who can, innovate; those who can't, litigate." Microsoft is getting closer and closer to moving entirely into the latter category. And for a company that just spent a lot of time and money losing a major patent lawsuit, you would think it would know better than to derail one of the few opportunities to push for real fixes to the system.

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Filed Under: journalism, patent reform, patents, software patents
Companies: google, microsoft

44 Comments

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Chosen Reject (profile), 4 Aug 2011 @ 4:31pm

Of course
Microsoft makes more from Android patent licenses than from it's own mobile OS division. They're the poster child for "those who can't innovate litigate." They're on the decline. Having lost a huge settlement at this point only entrenches them into this. They now know that they can make a whole lot more from patent licenses and lawsuits. They're heading down faster and faster and it's going to get messy.
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- David (profile), 4 Aug 2011 @ 11:16pm
  
  Re: Of course
  I agree with what you say except for the last sentence: How are they heading down? Won't it take a pretty significant act of Congress stop this from happening?
  [ link to this | view in chronology ]
Matt (profile), 4 Aug 2011 @ 4:37pm

Now wait a minute...
This is not quite fair. First off, there is nothing out-of-context about publishing a screenshot of an entire email. This is not like a journalist taking one sentence from a larger quote and publishing only the sentence. Google has not denied that it was offered participation in a bid for the Novell patents and declined.

And take apart what Google is saying in response. "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." What "attacks"? He can only mean "competition". Having an ownership interest in, and license to use, the patented technology certainly would have provided a perfect defense for Android against any patent litigation attacks.
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- someone (profile), 4 Aug 2011 @ 5:01pm
  
  Re: Now wait a minute...
  If both Google and Microsoft jointly own the patents Microsoft can still sue Motorola, HTC, etc for patent infringement from using Android and Google can not stop them.
  
  Only if Google has the sole rights to those patents can Google ensure they are not used to harm Android.
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  - Nicedoggy, 4 Aug 2011 @ 5:02pm
    
    Re: Re: Now wait a minute...
    Can you explain how that would happen?
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    - PRMan, 4 Aug 2011 @ 5:09pm
      
      Re: Re: Re: Now wait a minute...
      Simple. Because while Microsoft and Google would both be patent licensees, Motorola and HTC are not. Microsoft's game hasn't been to sue Google over Android, they force Motorola and HTC to pay.
      [ link to this | view in chronology ]
      - Nicedoggy, 4 Aug 2011 @ 6:19pm
        
        Re: Re: Re: Re: Now wait a minute...
        If Android was a licensee for those patents any subsequent use of it are licensed if Google gave it to them no?
        
        Lodsys is trying this against Apple and Apple is willing to go to court to show that their license covers Apple's apps developers, how is that any different from the case with Google having a license for Android and passing that license to manufacturers?
        [ link to this | view in chronology ]
        
        Jan Bilek (profile), 4 Aug 2011 @ 11:57pm
        
        Re: Re: Re: Re: Re: Now wait a minute...
        That's a misunderstanding. Those patents in question are not the same patents that Microsoft uses to sue Motorola and HTC so just buying them and "giving" them to Motorola and HTC would not have helped at all. Google wanted to buy them not because they would help Android producers directly but because they could use them in "mutually assured destruction" strategy - if you sue Android producers with your patents we will sue you with our patents.
        
        Therefore buying those patents together with Microsoft would mean that they could not use them against Microsoft that way - Microsoft would eliminate Google's defensive strategy... and let Google pay for it.
        [ link to this | view in chronology ]
        
        Nicedoggy, 5 Aug 2011 @ 5:49am
        
        Re: Re: Re: Re: Re: Re: Now wait a minute...
        Exactly, no one would be able to sue anybody inside that pool, which is also a good reason to have bought the patents.
        Does removing a vector of attack to your business a bad thing now?
        
        Costly but if you could do it, why wouldn't you?
        
        Also in the long run it may be good for patent reform, because you got these giant companies making giant patent pools and nobody else would be able to enter the market if they don't allow it, this will become a problem eventually.
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- Mike Masnick (profile), 4 Aug 2011 @ 5:24pm
  
  Re: Now wait a minute...
  This is not quite fair. First off, there is nothing out-of-context about publishing a screenshot of an entire email.
  
  That's absolutely out of context. You do not know what the original discussion was or what the offer for joining up was. You do not know the conditions. You do not know the nature of the regulatory climate. That email is completely without context.
  [ link to this | view in chronology ]
- Anonymous Coward, 5 Aug 2011 @ 6:24am
  
  Re: Now wait a minute...
  Did you just refer to patent litigation as a form of 'competition?'
  [ link to this | view in chronology ]
Robert Freetard (profile), 4 Aug 2011 @ 4:43pm

Or to put it another way,
Or to put it another way,

Those who can, Do.
Those who can't, Sue.
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- Anonymous Coward, 4 Aug 2011 @ 5:22pm
  
  Re: Or to put it another way,
  +1
  [ link to this | view in chronology ]
  - Hephaestus (profile), 5 Aug 2011 @ 12:07am
    
    Re: Re: Or to put it another way,
    Mike add a +1 to comments please
    [ link to this | view in chronology ]
Nicedoggy, 4 Aug 2011 @ 5:01pm

I'm not sure it is undeserved, Google could have been part of that consortium, and I didn't see the government go against anyone for building up patent pools which I think are a low way of keeping others out(e.g. MPEG LA).

Those patents would then not be able to be used against Android.

I was just thinking about why Google didn't made their own coalition of the willing to buy those patents and apparently Google didn't want others in it for some reason, this those not look good at all.
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- DCX2, 4 Aug 2011 @ 8:29pm
  
  Re:
  If Google and MS own patents as part of a consortium, Google can't stop MS from using those patents to go after HTC/Motorola/etc.
  [ link to this | view in chronology ]
  - Nicedoggy, 5 Aug 2011 @ 5:23am
    
    Re: Re:
    What happens if Google one of the joint patent holders gives a license to manufacturers?
    
    The fraking patent holder is giving permission for the use of those fraking patents no?
    
    How is Microsoft or Oracle or any other one of those in the pool will be able to challenge that?
    
    Please explain how that would happen because I sincerely don't see that happening even with the fraking patent system we have today I can't possibly see that happening, unless of course you explain it to me the mechanism that will be used to do that and have some references preferably court rulings showing your point.
    [ link to this | view in chronology ]
    - someone (profile), 5 Aug 2011 @ 6:52am
      
      Re: Re: Re:
      Google could give Motorola/HTC/etc a license to the patents.
      But Motorola/HTC/etc could not use them to counter sue Microsoft or Apple if they also own the same patent.
      
      Apple, Microsoft, etc would simply sue Motorola/HTC using other patents.
      
      The only way the patents help Android is if Google/Motorola/HTC/etc can use them against Apple, Microsoft, Oracle.
      
      Maybe if it spelled out you will get it.
      
      Mutually Assured Destruction works like this:
      If Google solely owned the patents:
      MS to Moto: We will sue you for patent A
      Moto to MS: We will counter sue you for B that Google licensed to us
      MS and Moto agree not to bother one another.
      
      If Google/MS both own the patents:
      MS to Moto: We will sue you for patent A
      Moto to MS: We will counter sue you for B that Google licensed to us
      MS to Moto: We also own patent B, sorry but we own you!
      Moto to MS: How much to license patent A?
      [ link to this | view in chronology ]
    - Anonymous Coward, 5 Aug 2011 @ 7:19am
      
      Re: Re: Re:
      It is not that Microsoft would use the Novell patents to go after Moto/HTC/Samsung - Microsoft would attack these companies using other patents in its portfolio.
      
      Google would then NOT be able to use the Novell patents to help defend these companies (their defense being the threat of a counter-suit against MS). If they were the sole winner, these patents COULD be used as a threat of a counter suit to pressure MS into backing down.
      [ link to this | view in chronology ]
- Aerilus, 5 Aug 2011 @ 12:09am
  
  Re:
  yes Google could have have thrown a billion dollars down a hole to pay for a system they don't believe in. and would have not gotten anything for it even in the context of the system they are trying to reform because they couldn't have used the patents in the only way that software patents can be used as a mutually assured self destruct button.
  [ link to this | view in chronology ]
  - Nicedoggy, 5 Aug 2011 @ 5:37am
    
    Re: Re:
    You see that is why I don't like ideologies that much they blind people.
    
    It doesn't matter if they believe it or not, it is real, it is a fraking problem today and with no solution on the horizon anytime soon.
    
    What Google did if they did it only for philosophical reasons was give others the weapons they need to really, really harm the Android platform.
    
    If they spent a billion dollars to get peace of mind it is not that worth it to others instead of going to court to solve all those 1000 patents that are a 1000 more lawsuits that will cost anybody dearly?
    
    No one in that pool would be able to sue other participants or is there a clause in that joint venture saying people can go after people who receive licenses?
    
    Was there a clause stating how everybody should issue licenses?
    
    Now that would be good to know, at the moment Google looks like it didn't like to be part of that pool and there is no apparent reason for it, that doesn't look good at all.
    
    Now if there was restrictions on how they could issue licenses to others then I would understand they not being part of it, and not because they wanted everything for themselves or didn't want to make part of something that Microsoft was going to be a part of.
    
    There needs to be a really, really good reason not to enter on something like that, because if you are not part of it you are giving a weapon to your competitor to restrict how you do business and that is never ever a smart move.
    
    Now please, please do show me that Microsoft and the other were imposing restrictions on how they would be able to license those patents to others.
    
    Because without that, what that pool would mean is not mutually assured destruction it would mean those patents wouldn't be able to be used to sue nobody under the Android platform with those patents, maybe different ones, but not that ones.
    [ link to this | view in chronology ]
- Anonymous Coward, 5 Aug 2011 @ 6:25am
  
  Re:
  It's not about those patents being used against android. Virtually everyone in the consortium, certainly Apple and Microsoft, already has all the patents they need to use against android. They bought those patents so that they could not be used to defend android because that's the way our fucked up system works, you have patents to defend yourself from patents.
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bigpicture, 4 Aug 2011 @ 5:17pm

Never Read the Crap
I stopped reading newspapers and magazines years ago. The reason? They don't research stories, don't present facts, much more prone to sensationalism, spin and hype. Create controversy and innuendo for attention to sell their rag. This is just another example of jumbling out of context quotations. When truth does come out that proves them wrong do they ever retract?
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out_of_the_blue, 4 Aug 2011 @ 7:12pm

Google just got into game late, is disadvantaged by patents.
Otherwise, they'd be all for it; corporations judge everything by money. In any case, they're buying up some:
http://www.seobythesea.com/2011/07/googles-new-patents-from-ibm/

Now, here's a translation that I bet is closer to actual context. The "Criminal's Code" is a method where everything said is backwards from intent (politicians use this almost exclusively now):

"Sorry for the delay in getting back to you"
You won't take hints and keep emailing me.

"I came down with a 24-hour bug on the way back from San Antonio."
You should watch your health. (For you kids, that's classic Mafia ellipsism.)

"After talking with people here, it sounds as though for various reasons a joint bid wouldn't be advisable for us on this one."
Playing for keeps. Not a chance of carving up the territory; we want it all.

"But I appreciate your flagging it, and we're open to discussing other similar opportunities in the future."
Now you've annoyed me. At first chance, I'll stab you in the back.

"I hope the rest of your travels go well,"
We're arranging a plane crash for you.

"and I look forward to seeing you again soon."
At your funeral.
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- Anonymous Coward, 5 Aug 2011 @ 6:27am
  
  Re: Google just got into game late, is disadvantaged by patents.
  In other words you can say they're saying whatever you want regardless of whatever they're actually saying and doing. How convenient for you...
  [ link to this | view in chronology ]
- The Groove Tiger (profile), 5 Aug 2011 @ 7:42am
  
  Re: Google just got into game late, is disadvantaged by patents.
  I like this game.
  
  "You won't take hints and keep emailing me."
  Somebody set up us the bomb.
  
  "You should watch your health. (For you kids, that's classic Mafia ellipsism.)"
  How are you gentlemen !!
  
  "Playing for keeps. Not a chance of carving up the territory; we want it all."
  All your base are belong to us.
  
  "Now you've annoyed me. At first chance, I'll stab you in the back."
  You are on the way to destruction.
  
  "We're arranging a plane crash for you."
  You have no chance to survive make your time.
  
  "At your funeral."
  For great justice.
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- Bios, 6 Aug 2011 @ 7:11am
  
  Re: Google just got into game late, is disadvantaged by patents.
  Your post, it lacks any grounding in reality. Next time troll harder.
  [ link to this | view in chronology ]
Wayne Borean (profile), 4 Aug 2011 @ 7:25pm

Microsoft Death Watch
That's part of the reason I predicted Microsoft filing for Chapter 11 in the fall of 2014 back in 2009. Microsoft never was an innovator. All of their products have either been purchased from someone else, or are an imitation of someone else's product. But at least they used to be able to imitate with some success. They can't even do that now.

Microsoft is in the process of destroying themselves.

Wayne
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- Michael (profile), 12 Aug 2011 @ 8:36am
  
  Re: Microsoft Death Watch
  How did you narrow it down to Fall of 2014?
  [ link to this | view in chronology ]
  - Wayne Borean (profile), 12 Aug 2011 @ 9:13am
    
    Re: Re: Microsoft Death Watch
    You look at the money flows, estimate the changes due to the changes in technologies, competition, etc., and pray like crazy.
    
    Then you check every single Microsoft SEC filing to see if anything looks odd. So far they appear to be following the script. Which doesn't mean that something won't change in the future. Microsoft has taken several actions that are show they are aware of the problem, look at the patent deal with HTC.
    
    I could quite easily be wrong. But I think I'm right. It's only a bit over three years now.
    
    Wayne
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Michael (profile), 4 Aug 2011 @ 8:47pm

Afterdawn's title is "Microsoft fires back at Google over patent dispute."

What is worse: they're just using phrases from a press release, or the writers of these articles are just that unimaginative that they use the same hyperbolic cliche?
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- bob, 4 Aug 2011 @ 10:26pm
  
  Re:
  Or they are paid Shills.
  [ link to this | view in chronology ]
- The Groove Tiger (profile), 5 Aug 2011 @ 7:44am
  
  Re:
  Of course the worst part is that they infringed in Google's copyright when they stole that letter in the intertubes.
  [ link to this | view in chronology ]
Anonymous Coward, 4 Aug 2011 @ 8:55pm

Novell != Nortel
"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."

Has anybody else noticed? It was Nortel patents sold, not Novell. Google must have Novell on the brain.
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- Anonymous Coward, 4 Aug 2011 @ 9:05pm
  
  Re: Novell != Nortel
  Did you actually read the story?
  [ link to this | view in chronology ]
- Rich, 4 Aug 2011 @ 9:28pm
  
  Re: Novell != Nortel
  I really hate this "!=" meme that's been going around lately. Is it really that hard to type "does not equal" or "is not the same as"? Or maybe I should join the parade and get lazy, too. Or maybe "mix-it-up" by randomly using /= from Ada, or <> from Pascal, or .EQ. from Fortran. Of course, I could just type "NOT EQUAL" and say it's COBOL...
  [ link to this | view in chronology ]
  - Michael (profile), 4 Aug 2011 @ 10:15pm
    
    Re: Re: Novell != Nortel
    throw HipsterCatRage
    [ link to this | view in chronology ]
  - Jay (profile), 6 Aug 2011 @ 11:25am
    
    Re: Re: Novell != Nortel
    You're complaining because there's a lot of programming nerds on the internet?
    [ link to this | view in chronology ]
    - Michael (profile), 12 Aug 2011 @ 8:38am
      
      Re: Re: Re: Novell != Nortel
      He's complaining that a lot of other programming nerds are showing off and he hasn't gotten his chance ...until now!
      [ link to this | view in chronology ]
- Mike Masnick (profile), 5 Aug 2011 @ 2:05am
  
  Re: Novell != Nortel
  Has anybody else noticed? It was Nortel patents sold, not Novell. Google must have Novell on the brain.
  
  No, as stated in the story, this is about the Novell patents, NOT the Nortel patents. The story is right.
  [ link to this | view in chronology ]
Michael (profile), 4 Aug 2011 @ 9:22pm

Is there any standard or convention for comments criticizing what you see as a badly written blog post?

From what I've read on Techcrunch, MG Siegler has a hard-on for anything related to Apple, and doesn't think twice about hating everything else.

He's like the Ahab of buyer's remorse.
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David (profile), 4 Aug 2011 @ 11:14pm

Looks like Mike lost his change of ever working for TechCrunch...
...not because he said anything bad, but because he proved to be too good of a journalist.
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patent litigation, 9 Aug 2011 @ 11:11am

well, DUH, Drummond
I must admit that I've been stymied by Drummond's complaints claiming that Microsoft et al are trying to take down Android. OF COURSE THEY ARE. It seems such an obvious, and typical, business tactic that I'm surprised Drummond even mentioned it. The reality is that, if you have a hit, high-quality product, your competitors will try as hard as they can to put you out of commission. The fact that Google's leadership is publicly complaining about such common business tactics makes me wonder whether the company's leaders are experienced and savvy enough to adequately weather the storm of cutthroat, high-stakes business and come out on top in the long run. If I were a Google investor, such comments (as well as Google's recent fumbling of its Nortel patent bid) might make me think twice about the long-term viability of an investment in the company.
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- Michael (profile), 12 Aug 2011 @ 2:18pm
  
  Re: well, DUH, Drummond
  The complaint is somewhat validated in that MS et al are trying to compete outside of a free market.
  
  Grandstanding through public complains like this are a form of PR and marketing. Microsoft does the same thing. You should think twice that these complaints genuinely reflect the entire depth of Drummond's understanding.
  
  I don't take everything a politician says at face value, nor your convoluted attack on Google's management ability.
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