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 –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).
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
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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