Apple 2.0

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Florian Mueller: Hypocrisy, thy name is Google

December 25, 2013: 2:55 PM ET

Claims Google rails against "patent trolls" while investing billions to play the same game.

Screen Shot 2013-12-25 at 2.26.15 PMFORTUNE -- The ironies in the complaint Google (GOOG) filed in a California federal court Monday were not lost of FOSS Patents' Florian Mueller.

Google was responding to a pair of patent infringement suits filed in October by Rockstar -- the consortium led by Apple (AAPL) that edged out the search giant ($4.5 billion to Google's $4.4 billion) in a 2011 bidding war for 6,000 Nortel Telecom patents.

  • One suit targeted Google's partners: Samsung and six other manufacturers that make smartphones based on Google's Android operating system.
  • The other was aimed squarely at Google's core business: The ad-supported searches that generated 92.4% of the company's income last quarter.

Google's complaint, Mueller writes, is filled with "the usual anti-troll rhetoric, blaming Rockstar's shareholders, with a particular focus on Apple, for the fact that Google's aggressive pursuit of the Nortel patent portfolio ... forced other industry players to join forces in order to clear the market of these patents. If not for Google's aggressive pursuit, these patents would have sold at a fraction of the price."

There's more. In an editorial he wrote for The Hill last month, Mueller accused Google of rank hypocrisy: Railing against patent trolls on one hand while playing the patent troll with the other.

According to Mueller:

Google funds various lobbying fronts that take aim at patent trolls such as the Computer & Communications Industry Association and -- together with Amazon and Yahoo! -- the Internet Alliance. Its executives also speak out directly -- and typically negatively -- on patents, especially software patents, and patent enforcement. But Google is only against other companies' patents. Never against its own.

Since the deal with Yahoo! ten years ago, which cleared the path for its IPO, Google hasn't announced a major patent license deal. This is in stark contrast to industry practice. Google released Android, its mobile platform, in 2007, using -- but not licensing -- Apple's multi-touch interface concepts, Microsoft's operating system technologies, Oracle's Java programming language, and probably also some other players' inventions. Certain owners of rights so violated felt forced to sue Google and (mostly) its device makers in 2010.

Since then, Google has had only one objective in connection with patents: to get away with its infringement. It first tried to arm itself with patents, showing up at pretty much every major patent auction, including unsuccessful bids for the patent portfolios of software maker Novell and communications hardware manufacturer Nortel. It bought roughly 2,000 patents from IBM, and smaller quantities from failed startups and entities it now denounces as "trolls", such as Mosaid, against which it later brought an antitrust complaint in the European Union. Another "troll", Intellectual Ventures, had received one of its first investments ever from Google.

Above all, Google paid $12.5 billion for Motorola Mobility, hoping to gain leverage from its patent trove. It won hardly anything in court, and currently has zero enforceable injunctions in place against Apple and Microsoft. Motorola's overly aggressive use of patents on industry standards, which are subject to licensing commitments, drew antitrust scrutiny in the U.S. and in Europe. This behavior may explain why six major industry players, including one Google hardware partner, formed the Rockstar Consortium to clear the market of the Nortel patents. Google's original plan was to do with the far more powerful Nortel portfolio what it then did with Motorola's weak tea. A whole industry could have been held hostage to Google's Android patent infringement strategy. (Link: Sue when you're winning.)

NOTE: Mueller has done paid consulting work for both Microsoft (MSFT) and Oracle (ORCL), but not, he says, "with respect to their litigation against Google."

See also: Apple takes the patent wars seriously. Google not so much.

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Philip Elmer-Dewitt
Philip Elmer-DeWitt
Editor, Apple 2.0, Fortune

Philip Elmer-DeWitt has been following Apple since 1982, first for Time Magazine, and now on the Web for Fortune.com.

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