A claim by a Google executive that Microsoft, Apple and other IT industry giants are using patents "as a weapon" to slow the growth of Google's Android mobile operating system has set off a tit-for-tat row between Google and Microsoft that shows no signs of subsiding.
The squabble has put a spotlight on the increasing use of technology patents by IT vendors to gain and maintain a competitive advantage.
The dispute began Wednesday when David Drummond, Google vice president and chief legal officer, posted a blog entitled "When Patents Attack Android" in which he argued that competitors, led by Microsoft and Apple, have banded together in "a hostile, organized campaign against Android" that's being "waged through bogus patents."
Drummond cited the acquisition of a number of Novell patents by CPTN Holdings LLC, a consortium of companies that includes Apple, EMC, Microsoft and Oracle, for $450 million; and the acquisition of patents from Nortel by an Apple-led consortium for $4.5 billion, as evidence of its competitors' efforts. Google had made an offer to acquire the Nortel patents, but was outbid.
The Google executive also pointed to Microsoft's demand that Samsung pay it a $15 licensing fee for each Android handset it sells, because Microsoft maintained that the Android handsets use technology covered by Microsoft patents.
"Patents were meant to encourage innovation, but lately they are being used as a weapon to stop it," Drummond wrote. "This anti-competitive strategy is also escalating the cost of patents way beyond what they're really worth."
"We’re not naive; technology is a tough and ever-changing industry and we work very hard to stay focused on our own business and make better products. But in this instance we thought it was important to speak out and make it clear that we’re determined to preserve Android as a competitive choice for consumers, by stopping those who are trying to strangle it," Drummond said.
Google is encouraged that the U.S. Department of Justice is intervening in the case, Drummond said, including changing the terms of the Novell deal and making the Novell patents subject to a GNU General Public License. The DOJ also is closely examining the Nortel patent sale.
That blog brought a Twitter response from Brad Smith, Microsoft general counsel, who said: "Google says we bought Novell patents to keep them from Google. Really? We asked them to bid jointly with us. They said no."
Drummond updated his blog on Thursday, calling Smith's response an effort to "divert attention by pushing a false 'gotcha!' while failing to address the substance of the issues we raised."
Drummond said Google turned down Microsoft's offer because the Redmond, Wash.-based software giant'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, Drummond argued, "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," Drummond said.
That prompted a series of Twitter responses from Frank Shaw, head of Microsoft corporate communications, who said Google turned down the opportunity to bid on the Novell patents "because they wanted to buy something that they could use to assert against someone else."
"So partnering with others & reducing patent liability across [the] industry is not something they wanted to help to do," Shaw said.
So far Apple has stayed out of the fray. An Apple spokesman did not immediately return a request for comment on the dispute.