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Microsoft, Google and the Game of Patents

Google: "Android is under legal attack by Microsoft, Apple and Oracle." Microsoft: "No it's not." Who's telling the truth?

Android is being attacked not so much by competing mobile OSes, but mostly by intellectual property (IP) lawyers at Microsoft, Apple Inc. and Oracle Corp.

That message comes from David Drummond, Google Inc. senior vice president and chief legal officer, who accused those three companies in a blog post last month of initiating "a hostile, organized campaign against Android."

Google, which shepherded the open source Linux-based Android mobile OS, recently lost out in two bidding auctions over Novell Inc. and Nortel IP. In each case, the patents at stake could be used to encumber Android and other mobile technologies, or just lead to an accumulation of patents for legal attack purposes.

Mobile device makers are currently being sued by Microsoft and Apple for IP associated with Android. They're either fighting it out in the courts, as with the Motorola and Barnes & Noble lawsuits with Microsoft, or they're striking royalty agreements, such as the HTC deal with Microsoft, among many others.

Google doesn't charge royalty fees for the use of Android, but it also doesn't appear to offer much in the way of an indemnity defense for the companies using Android in their products.

Drummond noted that the winning bidder for the Novell patents included a coalition of companies, called CPTN Holdings LLC. The CPTN members consisted of Microsoft, Oracle, Apple and EMC Corp., which collectively paid about $450 million in cash for 882 Novell patents. He claimed that Microsoft and Apple had banded together under this coalition to ensure that Google didn't get hold of those Novell patents.

The U.S. Department of Justice has already gotten involved in overseeing the Novell patents sale because of concerns that the IP might be used to curb Linux competition in the marketplace. To meet regulatory concerns, Microsoft was compelled to sell back the Novell licenses it bought as part of the CPTN coalition.

Similarly, Nortel sold its 6,000-plus patents last month for $4.5 billion to a consortium of companies that included Apple, EMC Corp., Ericsson, Microsoft, Research In Motion Ltd. and Sony Corp. Drummond noted in the blog post that the Department of Justice is "looking into whether Microsoft and Apple acquired the Nortel patents for anti-competitive means."

He added that Google is bolstering its patent portfolio to defend Android. It's not clear if Drummond meant Google's recent purchase of 1,030 patents from IBM Corp. for an undisclosed amount. No definitive reason was given by Google for the purchase.

In response to Drummond's claims, Brad Smith, Microsoft general counsel and senior vice president for legal and corporate affairs, issued a Twitter post claiming that Microsoft had invited Google to "bid jointly with us" for the Novell patents. Google had declined that offer, according to Smith.

Frank Shaw, Microsoft corporate vice president for corporate communications, echoed Smith's claim in a second Microsoft Twitter post on the topic. Shaw implied that Kent Walker, Google senior vice president and general counsel, had sent an e-mail declining the Novell patents joint-bidding offer. This e-mail, which lacks specifics, was apparently given to media outlets such as Business Insider Inc.

In an update to his blog post, Drummond characterized Microsoft's offer as a legal trick.

"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," Drummond wrote. "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."

About the Author

Kurt Mackie is senior news producer for the 1105 Enterprise Computing Group.