Google's Attempt To Bully Microsoft Back With Patents Not Going Too Well

from the live-by-the-sword... dept

Mon, Apr 29th 2013 7:09am — Mike Masnick

Ever since Google decided to stick with Motorola Mobility's existing patent fights with various companies, I've been wondering why they did so. Here was a chance for Google to take the high road and actually live up to what it had been claiming concerning the problems of patents. But, instead, it's basically continued to try to use patents as a weapon. The fight against Microsoft has been particularly silly. While Microsoft did initiate things, Motorola's decision to fight back had seemed dubious from the start. Being a patent bully is no way to run a long-term business, and that's doubly true when you're a company telling people how broken the patent system really is.

And yet, Motorola Mobility pushed on against Microsoft... and it's not going well. On Friday, a judge knocked the damages down to next to nothing, basically siding with Microsoft. Microsoft had argued that if there were any infringement, the amount owed should be about $1.2 million. Motorola Mobility had argued for... $4 billion. The judge came down at just $1.8 million.

I recognize, of course, that the whole reason that Google bought Motorola Mobility was to get access to these patents. And, on top of that, Microsoft did strike first here. However, Motorola Mobility had hit back quite strongly, and even once Google was in control, it seemed to have little interest in pulling back. The whole thing makes Google look a bit hypocritical, and it certainly hasn't helped the company win any of these legal battles.

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Filed Under: frand, licensing, patents
Companies: google, microsoft, motorola mobility

42 Comments

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Ninja (profile), 29 Apr 2013 @ 6:23am

I agree with most of what you said but if you think about it for a second Google did say they would try not to interfere in the mobile market as their partners on the Android front expressed founded worries about the move. So maybe they are letting Motorola do their stuff freely and that's the result. On the other hand they (Google) are not as seasoned as Microsoft in the patent field so they may be using a not so efficient strategy.

If I were Google and I started seeing all the patent abusing and it started hurting me I'd go completely nuclear just to prove the point. But then again that's just me.
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- anonymouse, 29 Apr 2013 @ 11:12am
  
  Re:
  I think Google is just trying to stop Microsoft from taking some of the profits that android device manufacturers have to pay to Microsoft for patents to cover some of the basic functions of any OS really. If anythign i think Microsft should be competing against android not Sueing or demanding profits from them. I did read somewhere recently about Microsoft bragging that they make a hell of a lot of money from android manufacturers, somewhere in the region of $1.6 Billion...with a B. every year. Sadly that is money that would have been netter going back into r&d than to Microsoft.
  
  Now although i dislike what Microsoft is doing, i have one of their phones, but must say though it is easy to use, i understand why it only has 5% of the phone market. Microsoft has just not bothered improving on what others have done, they have a really basic system and i doubt they have spent much developing it. If anything the 1.6 billion they get from android should at least be putting them in a position where they are throwing a lot of money at window phone 8. But the problem i suspect is that they know eventually some version of windows Phone will stick and people will embrace it in higher numbers.
  
  One thing i am amazed at is that windows phones do not integrate into windows desktops, it is amazing to me that they are not using each other to create an environment that is better than the iPhone or Android devices.
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  - Anonymous Coward, 30 Apr 2013 @ 4:09am
    
    Re: Re:
    "I think Google is just trying to stop Microsoft from taking some of the profits that android device manufacturers have to pay to Microsoft for patents to cover some of the basic functions of any OS really."
    
    So Windows Phone is suddenly a Unix based operating system??
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out_of_the_blue, 29 Apr 2013 @ 7:19am

"chance for Google to take the high road" -- AND DIDN'T.
As the Techdirt motto goes, "This is hardly surprising." It's only Mike and fanboys who are left puzzled, as always.
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- Anonymous Coward, 29 Apr 2013 @ 7:33am
  
  Re: "chance for Google to take the high road" -- AND DIDN'T.
  Execpt techdirt has repeatedly pointed out where google took the low or stupid path.
  
  Learn to respond to the real Mike Masnick & readership instead of the roadrunner cartoon you drew in your head.
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- Anonymous Coward, 29 Apr 2013 @ 8:12am
  
  Re: "chance for Google to take the high road" -- AND DIDN'T.
  I love how you put 'AND DIDN'T' in all caps outside the quotes as if it's your own addition and the article didn't already say the same thing. It's cute watching you spin around in circles though.
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Anonymous Coward, 29 Apr 2013 @ 7:27am

The biggest problem is that $1.8 million is considered "next to nothing." Yeah, Microsoft can afford it, but startups and private citizens cannot.
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souehfes9h (profile), 29 Apr 2013 @ 7:31am

I'm happy to let Google to fight on my behalf
B&N is not exactly a small business, but the moment they started manufacturing stuff, Microsoft attacked them with ridiculous patents. I'm a much (much!) smaller player than B&N. If Microsoft attacks me, I'll just have to shut down my business.

Heck, I'd even be happy if Google wins these ridiculous patent wars: they don't have a history of unprovoked attacks.
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Zakida Paul (profile), 29 Apr 2013 @ 7:33am

Live by the patent, die by the patent.

It is so hard to feel sympathy for any company having difficulty with patents when they, themselves, have exploited the patent system.
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- Anonymous Coward, 29 Apr 2013 @ 7:45am
  
  Re:
  Plus the argument that promoting the progress justifies theft seems dubious at best. IP is theft. Let me steal your car and donate it to an innovation firm because it promotes the progress and may help them invent something. No, it's theft and the alleged promotion of progress doesn't justify it. Abolish IP. This theft should no longer be tolerated in our society.
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Designerfx (profile), 29 Apr 2013 @ 7:34am

I wouldn't assume anything
this is the court case where the judge is in MS's pocket. Groklaw has this well documented.

It's not even about the patents anymore, as much as a highly questionable judge doing something which there is no precedent for ever having been done in any court in the united states.

To think this is about Google's ownership of patents, I would find that somewhat questionable in this case, which I should point out they were sued by *Microsoft*, and that this case was about RAND/SEP more than anything.

see: http://www.groklaw.net/article.php?story=20130426080437848
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- DCX2, 29 Apr 2013 @ 9:28am
  
  Re: I wouldn't assume anything
  Exactly, PJ goes into some good detail on this. Essentially, Motorola donated some of their patents to a standard under the impression that they would get RAND licensing terms. Motorola, according to RAND licensing terms, made an initial offer to MS. Instead of negotiating, as per RAND licensing terms, MS instead took the case to a Seattle court. Seattle...you know, where Microsoft's headquarters are?
  
  Anyway, the Judge decided that instead of forcing MS to negotiate, as per RAND licensing terms, that instead he was going to legislate from the bench and use MPEG LA patent pool licensing rates and literally force Motorola to accept licensing rates that they did not agree to accept when they donated their patent to the standard.
  
  To say this is about Google bullying MS, well, that's just dumb. Wasn't the lawsuit launched by Motorola, not Google? So why attack Google? For that matter, doesn't it make sense that if MS uses Motorola's Standards Essential Patents (SEPs), that it should pay them a fair rate according to RAND negotiations, which is the deal that Motorola made with the standards body when it donated its patents to the standard?
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  - Ninja (profile), 29 Apr 2013 @ 9:37am
    
    Re: Re: I wouldn't assume anything
    Which is rather interesting. If you are going get attacked for helping with a said standard without chance of defense because you've given up your patent on that then why would you even try to do it again? If this specific case is about this RAND issue then a decision against Motorola (or Google if you will) may start pretty bad chilling effects in getting any company to agree using any standard.
    
    This hardly configures as something promoting the progress of science and arts and anything at all.
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Anonymous Coward, 29 Apr 2013 @ 7:37am

IP law is a form of theft and it should be abolished.
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- Anonymous Coward, 29 Apr 2013 @ 7:45am
  
  Re:
  I'd say IP is closer to taxation than theft.
  
  Just as goverment taking a percent of your hard earned money is a necessary evil for a working socity with fire fighters roads and defenses so to is temporary taking your natural right to shape your property into certian forms to promote creativity
  [ link to this | view in chronology ]
  - Anonymous Coward, 29 Apr 2013 @ 7:45am
    
    Re: Re:
    is a necessary evil
    [ link to this | view in chronology ]
    - Anonymous Coward, 29 Apr 2013 @ 9:00am
      
      Re: Re: Re:
      Let me steal a million dollars from you so that I can use it to promote the progress.
      [ link to this | view in chronology ]
  - Anonymous Coward, 29 Apr 2013 @ 7:50am
    
    Re: Re:
    No, IP results in a transfer of wealth not to the government but to private entities. That's theft. Allegations that it promotes the progress does not justify theft.
    
    Taxation is a transfer of wealth to the government so that the government can carry out things like road building, law enforcement, and other public services. There is a difference.
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    - Anonymous Coward, 29 Apr 2013 @ 8:17am
      
      Re: Re: Re:
      All taxes result in transfers of wealth to private entities. When the government pays for a service and people use that services some of them are getting more than what they paid for and some are getting less, that's a transfer of wealth.
      [ link to this | view in chronology ]
      - Anonymous Coward, 29 Apr 2013 @ 8:45am
        
        Re: Re: Re: Re:
        "When the government pays for a service and people use that services some of them are getting more than what they paid for and some are getting less"
        
        But everyone has equal access to those services. The government builds a library, everyone is free to use it. That you may choose not to is not anyone else's fault.
        
        IP law is theft in that it deprives me of something giving someone else exclusive use of it. Just like if I take your car you are being deprived of it.
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        Anonymous Coward, 29 Apr 2013 @ 8:55am
        
        Re: Re: Re: Re: Re:
        With IP law nothing is being built out of the wealth transfer that everyone can equally and freely use. It's a transfer of wealth to private entities for private use. It's the very definition of theft as distinguished from a tax.
        
        The alleged justification for this theft is that it promotes the progress. But that's no justification. Let me take your car and donate it to Sony so that they can use it to promote the progress and build new products. No, that's not justification. It's theft and it should be abolished.
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        Anonymous Coward, 29 Apr 2013 @ 8:57am
        
        Re: Re: Re: Re: Re: Re:
        The government builds a park, everyone can visit it. You may choose not to but you are also free to. The wealth transfer associated with IP law is different.
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        Anonymous Coward, 29 Apr 2013 @ 10:13am
        
        Re: Re: Re: Re: Re: Re: Re:
        I would agree that it's different but they're still both wealth transfers.
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        Anonymous Coward, 29 Apr 2013 @ 3:13pm
        
        Re: Re: Re: Re: Re: Re: Re: Re:
        and taxation in many instances is like theft, I agree. but IP is a much more direct theft, it's more like you stole my car for your own personal gain with no government oversight over what is done with that wealth. Taxation has a public oversight process (or at least in theory, sure corruption and secrecy exist in the real world) whereby there is an assurance the transfer of wealth gets used for the public benefit. There is oversight over who gets taxed and how much based on their circumstances.
        
        IP is straight theft whereby the transfer of wealth is straight theft. The alleged justification behind this theft is that it promotes the progress. But that is no justification for theft.
        
        The government doesn't even seem to be doing much to ensure that progress is promoted or to determine whether or not it gets promoted. Metrics like "more patents automatically mean more progress" doesn't really tell you if patents promote the progress because if they don't then more patents do not equal more progress. But either way, IP is theft and should be abolished.
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        Anonymous Coward, 29 Apr 2013 @ 10:12am
        
        Re: Re: Re: Re: Re:
        Equal access is irrelevant. If I go to your house and take your car and let everyone in your neighborhood use it on a first come first serve basis, even you, I've still stolen your car.
        
        Taxes are theft in that they deprive the tax payer of money giving someone else exclusive use of it. You're just giving that a pass because the use is, ostensibly, for the greater good. Maybe it even is for the greater good, it's still theft.
        [ link to this | view in chronology ]
        
        Anonymous Coward, 29 Apr 2013 @ 3:06pm
        
        Re: Re: Re: Re: Re: Re:
        Equal access is relevant. The government doesn't just take my car, they take the car of everyone on equal terms (ie: based on how much they get paid you get taxed a percentage of that) and they (should) spend that money on things that most should have equal access to. The money being taken and its use isn't being governed by private entities, it's being governed by elected officials with public oversight (or at least should be. You should have council meetings, etc..). There is (or should be) a process of accountability over how much money gets taken from whom (based on income or how much they spend and how many things they buy, ie: sales tax) and what gets done with that money.
        
        IP is a transfer of wealth from one entity to another with no oversight or accountability. It goes to a private entity who is then free to use it for his own personal gain. If you steal my car, you are free to use it for your personal gain. Sure, you can use it for the public good but no one elected you to do so and there is no oversight process to ensure that you do. You aren't an elected official taking my property within your power and position of an elected official using it for the public good within that position as elected and with public oversight and so for you to take my property is theft no matter what you do with it.
        
        Likewise, IP is theft.
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        Anonymous Coward, 29 Apr 2013 @ 3:39pm
        
        Re: Re: Re: Re: Re: Re: Re:
        For example, pharmaceutical corporations have long argued that they need patents to cover their R&D costs. But when the public asks them to allow independent auditors to audit their costs they refuse. There is no oversight like there is (or should be) with government.
        
        Anyone or corporation who enforces and benefits from patents should have all of their financial information made public so that the public can determine what their money is being spent on and to what extent the patent system should be maintained, changed, or reduced, or abolished. I want a record of every receipt. There needs to be public oversight over the money that gets spent with the transfer of wealth so that the public can discuss and ensure that the patents are justified. But there is none. The wealth is simply transferred into the hands of a private entity who is then free to use it as they see fit for their own private gain. That's the very definition of theft as distinguished from taxation. There is no democratic oversight over the transfer of wealth, there is no democratic process governing how that wealth transfer gets spent, there is no requirement of transparency over how it gets spent to ensure that progress is promoted and that the money is being well spent to promote the progress, it just gets transferred. That's theft.
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        Anonymous Coward, 29 Apr 2013 @ 3:43pm
        
        Re: Re: Re: Re: Re: Re: Re: Re:
        * that wealth transfer is being well and efficiently spent to efficiently promote the progress and ensure that the public benefit is optimally benefited per unit of wealth transferred (and that the benefits outweigh the costs). There is no public oversight to ensure that the wealth transfer gets efficiently spent for a public good. No, the wealth simply gets transferred into the hands of a private, non-elected, entity who does who knows what with it.
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  - Anonymous Coward, 29 Apr 2013 @ 8:14am
    
    Re: Re:
    Taxes are also theft. Six of one. Half dozen of another really.
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    - Anonymous Coward, 29 Apr 2013 @ 3:17pm
      
      Re: Re: Re:
      It arguably is, but the difference is that there is an oversight process governing the transfer of wealth due to taxation (at least in theory). Those in charge of managing taxes are elected officials. The transfer of wealth due to taxation goes into the hands of non-elected private entities that are then free to use it for their own private purposes. No one elected IP holders to manage the transfer of wealth that they get from these laws.
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      - Anonymous Coward, 29 Apr 2013 @ 3:19pm
        
        Re: Re: Re: Re:
        errr ... that sentence should have read
        
        "The transfer of wealth due IP laws goes into the hands of non-elected private entities that are then free to use it for their own private purposes". The alleged justification is that it promotes the progress. But that's no justification for theft. IP should be abolished.
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  - Anonymous Coward, 29 Apr 2013 @ 8:21am
    
    Re: Re:
    Nice in theory, but patents have become a means of protecting business from competition.
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  - Anonymous Coward, 29 Apr 2013 @ 9:43am
    
    Re: Re:
    No, I'd argue that it's closer to tax evasion than to taxation itself.
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    - Anonymous Coward, 30 Apr 2013 @ 12:33am
      
      Re: Re: Re:
      only in the modern form where the mpAA bribes congress toi extend copyright so as to skirt around the 'for limited timex' rule of the copyright clause
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Anonymous Coward, 29 Apr 2013 @ 7:55am

the problem here is that as with everything Google does, it waits too long to get going, particularly if it means standing up for it's own customers of against companies that could mean it has less customers.
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saulgoode (profile), 29 Apr 2013 @ 9:38am

The article is a bit misleading in that Google/Motorola were the ones being sued by Microsoft in the Seattle case. It might be legitimate to criticize Google for their Florida and Wisconsin countersuits, but it was hardly an option for Google to not defend themselves in Washington.
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- Anonymous Coward, 30 Apr 2013 @ 4:06am
  
  Response to: saulgoode on Apr 29th, 2013 @ 9:38am
  It's sad how fanboys are defending Google here. It is the same exact documentation to try and get the XBox360 banned from import to the US.
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printing724 (profile), 29 Apr 2013 @ 10:13am

Had to check the byline, for a moment I thought Florian Mueller had become a Techdirt guest columnist.

Synopsis of article:
1) Google is stupid.
2) Microsoft started it, which makes Google stupid and hypocritical for defending itself against a lawsuit it was already a party to once it bought Motorola.
3) Defending oneself in a patent lawsuit makes one a patent bully.
4) Google is stupid and hypocritical.

Actual timeline of events:
1) Motorola extends a starting offer to license its SEP under high (exorbitant)terms.
2) Microsoft files a lawsuit alleging breach of contract of RAND obligation without attempting a negotiation.
3) Google buys Motorola.
4) Judge Robart places a RAND value on Motorola's SEP that is low enough as to essentially make it worthless. World rejoices, forgets where Seattle is.

Betcha Florian puts a link to this column in one of his blog posts.
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- Anonymous Coward, 29 Apr 2013 @ 10:22am
  
  Re:
  Pretty harsh telling someone you could have mistaken them for Florian but seems pretty justified here. Everyone seems to be analyzing this case as if Motarola/Google sued Microsoft instead of the other way around and that really rubs me the wrong way.
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Anonymous Coward, 29 Apr 2013 @ 10:25am

Personally, I look at it this way:

If I was Google and I purchased a large patent portfolio that was already in litigation, I'd probably continue with the litigation. Why? So I can win and ride the easy gravy train for a while? No personally it'd be with the hopes that a defeat will allow some very nice precedents to be set that I can use later with equally silly litigation (since clearly nobody wants to fix the system the right way).
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Anonymous Coward, 29 Apr 2013 @ 2:14pm

Give it some time and Google will learn to use the same legal tools others are using, they probably even start funding patent trolls as a laboratory to conduct experiments and see what flies and what doesn't just like Microsoft is doing it.
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Anonymous Coward, 30 Apr 2013 @ 4:04am

Just because a company runs an advertisement campaign against you doesn't mean you have the right to sue them with the same exact patent infringements that the FTC has already ruled on. So I fully expect this has a lot to do with Motorola Mobility vs XBox 360....which was ruled in favor of Microsoft.
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