Google Responds To Microsoft’s “Gotcha”: They’re Diverting Attention With A Trick That Failed

This back and forth between Google and Microsoft is getting good.

Yesterday, Google wrote a post calling out Microsoft, Apple, Oracle, and others for using “bogus” patents to try to kill Android. Some of the patents Google’s Chief Legal Officer David Drummond mentioned included the ones Microsoft acquired from Novell (not to be confused with Nortel, which happened later). When Microsoft saw this, two senior officials took to Twitter to effectively pants Google. You see, Microsoft had tried to get Google to partner with them to buy the Novell patents — Google turned them down. And Microsoft had the email to prove it.

But there was an obvious reason for this rejection, which Microsoft conveniently left out, Google now says.

Drummond has addressed the pantsing incident in an update to his original blog post from yesterday. He kicks the update off with:

It’s not surprising that Microsoft would want to divert attention by pushing a false “gotcha!” while failing to address the substance of the issues we raised.

But then comes the substance:

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.

So what Drummond is saying is that Microsoft’s offer to team up with Google to buy the Novell patents was more or less a trick. By teaming up on the Novell patents, Google would have them, but they wouldn’t have been able to have been used to protect Android, because Microsoft would have had them too.

Should Google have just gone along with that anyway, since ultimately Microsoft did get them (along with Apple, Oracle, and EMC)? You could argue that. But fortunately for Google, the courts intervened in that deal and made Microsoft sell off the patents they bought and made the others in the group license the rest, Drummond notes.

This may go a bit deeper too. It’s conceivable that Microsoft knew Google would never go for this joint-acquisition plan, but offered it anyway so that when the DoJ did look into the deal, Microsoft would point to the offer sent Google’s way. These companies are very smart and calculating, don’t put something like this past either of them.

In his original post, Drummond said that the DoJ was also looking into the more recent Nortel patent acquisition by Microsoft, Apple, RIM, and others. Clearly, Google hopes the same type of thing will happen here, but that’s still being decided. While Apple was cleared by the DoJ to buy the patents ahead of the auction, Microsoft could face a similar ruling as the Novell situation since they already had a licensing agreement on the patents, just as they had on the Novell patents before they tried to buy them. We’ll see.

More importantly, this battle is not going to end anytime soon. Novell was part one, then things intensified significantly with the Nortel auction, part 2. But part 3 should be the most intense yet, as both Google and Apple are going after the InterDigital patents. The Nortel patent purse had over 6,000 patents, but InterDigital has over 8,800. If the winning bid on Nortel was $4.5 billion, InterDigital should be well north of $5 billion.

Hang on to your butts.

UpdateMicrosoft Responds To Google’s Response To Microsoft’s Response