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If Google’s chief legal officer was aiming to spark a reaction with his Wednesday blog post focusing on tech patents, mission accomplished. But in the latest salvo of the rapidly escalating patent wars, did CLO David Drummond make his case—or did he make a huge misstep? The paradoxical verdict rolling in from tech bloggers and pundits may well be that while Drummond has a point about the stifling chokehold of patent litigation, the evidence he cites in the post is shaky at best, and self-pitying and hypocritical at worst. To recap the opening round: On Wednesday, Drummond posted an eight-paragraph missive, “When patents attack Android,” on a Google blog. He wrote that the success of Google’s smartphone operating system has triggered some strange and vicious happenings—like prompting rivals Microsoft and Apple “to get into bed together” to purchase smartphone patents and inspiring a “hostile, organized campaign against Android by Microsoft, Oracle, Apple and other companies, waged through bogus patents.” Drummond further alleges that the strange bedfellows banded together to acquire large collections of patents in order “to make sure Google didn’t get them,” to make Android more expensive, and thereby to “make it harder for manufacturers to sell Android devices.” The strategy is “anti-competitive” and a “weapon” against innovation, Drummond writes. Now, no one likes a so-called “patent troll.” However, not many people are lining up to throw a pity party for Google, either. Especially not when Microsoft’s general counsel Brad Smith tweeted this: Google says we bought Novell patents to keep them from Google. Really? We asked them to bid jointly with us. They said no. Which was followed by a release of a taunting tweet from Frank X. Shaw, head of corporate communications for Microsoft, along with the corroborating email from Google general counsel Kent Walker to Brad Smith, declining to join Microsoft in the Novell bid: After talking with people here, it sounds as though for various reasons a joint bid wouldn’t be advisable for us on this one. But I appreciate your flagging it, and we’re open to discussing other similar opportunities in the future. All of which prompted this headline from TechCrunch: “Google threw a punch, Microsoft fires back with a missile.” Dwight Silverman, writing in the Houston Chronicle‘s TechBlog, called Drummond’s post an “epic whine.” CNNMoney’s Philip Elmer-DeWitt said it “may be remembered as one of the most misguided briefs any high-tech lawyer has ever written.” And Wired likened the whole exchange to watching “a big family meltdown” unfold in a restaurant, with Google playing the part of the angry teenager storming out the door. Which doesn’t mean there’s a consensus that Google is utterly in the wrong here. The practice of companies buying up tons of patents for the purpose of suing a company that actually makes something with the patented technology has gotten a lot of bad press—including the investigation “When Patents Attack!”, which appeared on the radio show This American Life. Timothy B. Lee at Forbes does consider Google to be a “victim” of the U.S.’s “innovation-taxing patent system,” and offers an insightful update on the state of U.S. patent reform. And BusinessInsider, for one, thinks Google is in the right: It is lame that everyone in the smartphone industry is suing each other using old, silly patents that have little or nothing to do with recent innovation, to try to wring out settlements and drive up the costs of doing business. If anything, Apple should be suing Google and its partners over important things, like copying its multi-touch UI—if Apple really invented and patented it. And companies that aren’t involved in making smartphones shouldn’t be suing those that are. But this is what the system has enabled: Patent trolls, obvious and basic software patents, and old patents hurting new products. So until someone radically changes the system, that’s going to be part of competition. Google knew that enough to bid more than $3 billion on Nortel’s patents before losing. I hope Google’s lawyers will be doing a lot more about this than just blogging.

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