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Google, Motorola, Patent Shields and the Double-Edged Sword

August 16, 2011

The Official Google blog starts by discussing Motorola’s history in the wireless market, from early cell phones (remember the analog ‘Brick’ phone?  The ‘Flip’?) to the early introduction of the tiny StarTAC; they also remind their readers that Motorola bet their smart phone strategy on the Android operating platform.  It says  “That is why I am so excited today to announce that we have agreed to acquire Motorola.”  (Link to press announcement)

I’ve read some commentary, and some background…  Eric Raymond has added an almost permanent fixture on his blog, a series of posts that begin with “The Smartphone Wars:” …  so as a regular observer of his work, I have been primed.  His thoughts on the acquisition, and his immediate predictions, can be found here.  It is clear to Eric that this is about the patents.  Most commentary on the blog also acknowledges this, and much commentary goes back and forth about whether this is all about the patents, or mostly about the patents.  When today’s announcement is a somewhat distant past, the truth will be clear.  Until then, people can feel free to discuss.

I might have a few readers who have not given much thought to patents.  There was a reason why patents exist, and in the constitution, it is said (essentially, and heavily paraphrased) that it provides inventors the incentive to take the risks inherent in bringing new inventions and discoveries to public light.  They exist to encourage people to invent, and to share, by protecting the patent-holder’s right (for a limited time) to decide who can use their inventions, and at what cost.  In many cases, this is (or was at least) true.  While I suppose this discussion could broaden to other patentable fields, the one that is most relevant here is that of Software Patents.  Regardless of what their initial intent was,  it seems that software patents act with a chilling effect to stifle true invention.  For years, big software companies have been amassing what are called “Patent Portfolios”.  These portfolios can act as swords (weapons to use against competitors), and they can act as shields (deterrents).  They really do not mother invention.

Part of the issue is that the people issuing patents really lack the technical savvy to determine actually patentable software.  Maybe some people are familiar with this 1975 patent issued for the “Method of concealing partial baldness”.  (I wonder how many aging men had to pay their dues to the patent holder of the comb-over, that is, before it was no longer enforceable.)    What most people don’t know, is that there are many patents like this in the software industry, that are a horrible abuse of the system.  You can defend yourself (perhaps a small software development shop) against patent litigation with one of these specious patents by proving the existence of “prior art.”  So:  no harm, no foul.  Right?  Well, yes and no.  You can prove prior art, when you get your day in court.  In today’s system, however, the amount of money you need to spend to defend yourself against patent litigation by companies with endless zombie armies of litigious patent warriors is astronomical.  It is often just easier, and cheaper, to fold up your tent.

Back to The Sword and The Shield.  If you are a big company, and you don’t like competition, you can get your hands on some good legal ammunition by buying up companies that have interesting patents.  They don’t really have to be valid, they just have to be issued.  Many battles over intellectual property have been fought with patents as the weapon, but mostly it is used as extortion (various forms… “Don’t do it, or we’ll sue” .. or “Do it, and pay us $$$, or we’ll sue.”)  But like any go0d arms race, get enough big players in the game, and instead of wars of attrition, you get cold wars, and delicate truces.  There is a likelihood that two players in the same sub-section of the software field will technically infringe on one another’s crazy patents.  So, something like “You could sue me for XYZ .. but I’ll countersue for ABC … ” is the detente.

Here is where we get back to the subject that precipitated the discussion.  A (the?) primary reason for Google wanting to buy Motorola, is, as Eric Raymond said:

This is Google telling Apple and Microsoft and Oracle “You want to play silly-buggers with junk patents? Bring it on; we’ll countersue you into oblivion.”

It makes perfect sense.  The android market is threatened by people who want a bigger piece of the smartphone money, and this move would be a brilliant counter-stroke on behalf of Google’s partners, and to protect Google’s interest in the platform.  Motorola’s patents are good for the portfolio.  Google steps into the arena, and wields the double-edged sword, and screams “I am Spartacus!”

The deafening cheers of the crowds that look on shakes the very skies with its intensity.   The hero has arrived.

.. still reading?

The patent sword is double-edged, with a flaming hilt as well.  One expects repeat offender patent trolls to use the tactic.  Bad guys do bad things.  The peril for Google is the mind share that it has:  this sword cuts the wielder as well as the opponent.     Google began with the near-perfecting of the delicate art of web search.  Making it bigger, better, quicker and relevant.  True innovation.  When Google went public, many feared that it would shed its nice-guy role, and descend into the depths of  hell, to be crowned “that big evil corporation”.   Google has spread its innovation across various aspects of the web.  Say what you want.  Fear what you must.  But, they certainly innovate.

So, certainly, going nuclear at this stage is unbecoming…

..let my mind wander briefly back to the broader issue of patents, before I wander back to Google and Motorola again:

It is a damned shame that software has come to this state.   Google has interests in the Android platform.  It is open.  Google has partners.  It is a shame that it has to muck through this filth to protect what it has built.  But here is where I, with 81.34% certainty (a number most certainly pulled straight out of my ass), can state that there is no better way.  Spend the money to buy the flaming shit-shield of a smart-phone patent arsenal, or spend the money fighting the trolls with rocks and sticks.   I have resigned myself to this, in the current state of patents in the USA, as being a necessary act of legal war.

I guess the other fear is that Google now will own the hardware that its software runs on.  The “vertical”.  Many posit that it will shed itself of the actual hardware business, and keep the patents.  This may be.  As I said earlier:

When today’s announcement is a somewhat distant past, the truth will be clear.

Google has made some mistakes.  And much of the way that they are ever-present in the internet of today frightens me.  If only because, in time, those who run Google now might not be those who run  Google in the future when.  But Google has innovated.  Its possible that they will tinker with the hardware, and try to combine their drive to build the biggest rat-trap with Motorola’s (if sometimes spotty and perhaps roller-coastery) history of cell phone leadership, and come up with something extraordinary.

I guess I’ve come all this way to say, I just don’t know.  I want to believe, but real heroes are few and far between.

And to Doc , who inspired me to weigh in on my blog, I quote and paraphrase some my scattered, initial thoughts on the matter, as a close.  In essence, I want to believe that Google will be true to their origins, but this was my gut reaction:

I am currently reviewing the googarola thing … It is obviously
potentially fraught with danger… and a great deal of it comes down
to trusting that Google’s “Do No Evil” philosophy can survive Wall
Streets “Cover your ass-ets” mindset–especially in light of patent
portfolios.

The real question is how strong is the existing community of “Open”
developers for the Android market — can they absorb the Patent +
Closed Source influx and change minds?  One could say that it marks a
sort of test — if the “open way” is better–it should win.  But that
person would also be missing the fact that Patents miss the mark they
were intended to make — they often stifle the type of innovative
thought, the “free marketplace of ideas” … in the name of promoting
innovation.

The biggest danger, is, that Google seems to get a pass from the
otherwise “big corp” leery(sp) techies.  “It’s google–their heart is
in the right place” .. except they’re not a garage band anymore,
they’re playing the big arenas…and big money means compromise where
“the art” is concerned.  Almost always.    And they might amass their
flocks of t-shirt wearing fans with hard-hitting provocative thought
— but its all teenie-bopper when the real world of economics settles
in.

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