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Thursday, 04 August 2011 19:00

Google vs Microsoft Isn't Just A Battle of Products, But A Battle of Ideas

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Google vs Microsoft Isn't Just A Battle of Products, But A Battle of Ideas

Patent Application for the Cotton Gin

It’s not often that multibillion dollar tech companies take to the internet to throw elbows at each other, at least without hiring outside PR to do it on the sly. Watching it unfold in public is a little like watching a big family melt down at a restaurant: harsh words turn from whispers to shouts, secrets are dredged up, and eventually the teenager storms out the door, stopping only to let everyone know how much she hates them for doing this to her and that she’ll be walking home alone.

That’s pretty much what happened with Google yesterday — only the big fighting family included Microsoft, Apple, Oracle, and Samsung; the fight was over software patents, not dinner; and the declaration of independence in miniature didn’t come from an angry teenager, but an angry lawyer:

Android’s success has yielded… a hostile, organized campaign against Android by Microsoft, Oracle, Apple and other companies, waged through bogus patents…

Instead of competing by building new features or devices, they are fighting through litigation… Unless we act, consumers could face rising costs for Android devices — and fewer choices for their next phone.

Google’s chief legal officer David Drummond is angry. He’s angry that Google lost its bid for Nortel’s patent portfolio. He’s angry that winners of the $4.5 billion bid, a consortium of tech companies including mobile rivals like Microsoft, Apple and RIM, will probably use Android’s real or apparent infringement patents as leverage in lawsuits against or licensing settlements with Google and Android device makers; he’s angry that Microsoft makes more money straight-up for Android’s OS than Google does; he’s angry that companies like Oracle, who once stood against software patents in principle and claimed to use them only defensively, have aligned with other companies who aren’t, and don’t, and even sued Google for infringement; and he’s angry that Google, even after buying up patents from IBM and elsewhere, doesn’t have much intellectual property leverage of its own.

The semi-official response to Google’s attack from Microsoft general counsel Brad Smith was so simple, it fit on Twitter:

Microsoft’s Frank X. Shaw later tweeted a screencap of an email between Smith and Google’s Kent Walker where Walker appears to decline a joint bid for Nortel’s patents.

The message is clear: we invited Google to be a partner on this. Google wanted all the toys for itself — and thought it could have them.

As Forbes’s Timothy Lee writes, Google’s position on patents is intellectually inconsistent. if Google truly opposes how software patents are used, it should challenge the entire system by actually supporting patent reform. At its limit, that means publicly supporting eliminating software patents altogether.

The US Supreme Court could do just that, simply by extending its prohibition against patenting mathematical algorithms to software code. Even if it looks like hardware, and increasingly works like hardware, all software is ultimately just lines of mathematical code.

“Of course,” Lee writes, “invalidating software patents at this point would be intensely controversial, because it would invalidate hundreds of thousands of patents—worth billions of dollars—at a single stroke. Courts always try to avoid upsetting apple carts.”

This is why, despite Google’s promise to fight patent monopolies and usurious licenses by appealing to the Department of Justice, there’s no corresponding promise to take patent fights all the way to the Supreme Court. It’s not only the cost of litigation that leads even big, rich companies to settle out of court. If it were taken all the way to the end, nobody knows where it could lead.

But by taking it to the blogs rather than the courts, Google also shows that while the law gives our current patent mess its contours, the immediate stakes are securing the high ground in public opinion. In this fight, consistency doesn’t much matter.

Google’s capitalizing on a brand-new, widely-hailed episode of public radio’s popular “This American Life,” on intellectual patent law, titled “When Patents Attack.” (Drummond even titled his post “When patents attack Android.”)

The general public is more aware of patent law and intellectual property disputes than ever before. Most importantly, this awareness shapes their attitudes towards technology companies and their products.

Google wants to be seen as open, free, innovative. It offers consumers greater choices at a better price. Sure, it’s pursuing patents — but it doesn’t really want to. It’s Google’s opponents who are the oligarchy, teaming up to oppose Google’s red-hot Android with a patent monopoly. (Oligopoly? Is that a thing? Ehh, monopoly is what everyone understands. And everyone knows monopolies are bad.)

Likewise, Apple wants to be seen as inventive, ground-breaking, a protector of its programming community and a primary source of technological innovation — even the innovation it’s borrowed from elsewhere. Microsoft wants to be seen as a strong partner who’s serious about any threat to its flagship products.

Nathan Myhrvold of Intellectual Ventures, who has been called a patent troll so many times it’s become a running joke, wants to be seen as helping small, powerless inventors protect their ideas. Mike Lee and other iOS developers want to be seen as a strong, united front against people like Myhrvold.

Don’t underestimate the reach of these caricatures. This spring, I was playing Angry Birds with a seven-year-old who patiently explained to me why he liked Apple more than Verizon, because Verizon’s Droid phones just stole all its ideas from Apple’s iPhone. (I still haven’t told him that I have a Verizon iPhone now.)

My young friend may have been mixed up on the details, but he was lucid, he was deliberate, and most importantly, he was absolutely convinced. That’s what Google’s fighting here, in public — and that’s why Microsoft and others will be fighting back.

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