Thursday, August 4, 2011

Google Plays the Victim Card

Google's Chief Legal Officer, David Drummond, wrote a blog post on Wednesday casting blame externally for Google's failure under his leadership to develop an IP position, either internally or through acquisitions, in support of its Android business.

Tom Claburn from InformationWeek asked me to comment. The story can be found here. My comments from the article:

Patrick T. Igoe, a patent attorney, founder of Igoe Intellectual Property, LLC, software engineer, and blogger, takes issue with Drummond's argument that Google's competitors are litigating rather innovating.

"Apparently, David Drummond has missed the last five Apple WWDC keynotes and quite a few Apple product announcements," he said in an email. "Maybe he was busy watching Google TV."

Igoe says that Google's core focus has been on advertising and data collection technology and that it has largely followed Apple's lead with Android. He points to Google's weak intellectual property portfolio as proof.

"No one would benefit, not even Apple in the very long run, from Apple having an effective monopoly on premium-user-experience smartphones," he said. "Google, however, will have to come to grips with the fact that its failure to innovate and protect its innovation like Apple did will have costs."

Igoe expects that the price advantage Google has enjoyed will be diminished by licensing costs."That does not mean Android can no longer compete, but it does mean Android and the supporting ecosystem will need to get a lot better to stay competitive as price advantage erodes," he said.

"Google could mitigate this problem in the long run by creating new technologies for Android that Apple would have to license. I think the reaction we are seeing from Google, though, shows a lack of confidence that they can do that."

Drummond made one other comment in his blog post that I must take issue with:

This anti-competitive strategy is also escalating the cost of patents way beyond what they’re really worth. ... Fortunately, the law frowns on the accumulation of dubious patents for anti-competitive means — which means these deals are likely to draw regulatory scrutiny, and this patent bubble will pop. (emphasis added)

First, things are worth what parties are willing to pay in the marketplace. A set of companies was willing to pay $4.5B for the Nortel portfolio. That's what they were worth that day. Was the ability to exclude Google from using those technologies a factor? OF COURSE! The right to exclude others is the fundamental right provided by a patent!

Second, I'd like to know Drummond's basis for calling the Nortel patents "dubious." Nortel was a highly regarded company with real engineers, real products, and real R&D spend. If even Nortel's patents don't meet Drummond's approval, his post is really nothing more than a whining screed against patents in general… at least against the ones Google couldn't get.

No comments: