

More on Google and Patents - Vexenon
http://daringfireball.net/2011/08/more_on_google_and_patents

======
joebadmo
The convolutions continue. 

"What I’m complaining about isn’t Google playing the game, but rather their
insistent whining about their competitors only after they lost the game." 

It's easy to redefine the game as whatever suits your outcome.  And it's
perfectly reasonable to complain about an unfair game that you're losing
because it's unfair. 

And anyway, by this logic, you could simply call the PR battle 'part of the
game' and say Google is just playing on the rising anti-patent sentiment in
the industry. 

~~~
AllenKids
Then Gruber's piece can be considered a rebuttal of such PR move. 

Oh it's so meta isn't it? 

Also the rules haven't changed a bit, Google got in the game knowingly.  Though
one can argue the patent system is broken and needs urgent adjustment.  Nortel
IP incident is more of bidding war and Google played its hand spectacularly
badly plain and simple.  There is nothing illegal and shady about
Apple/Microsoft/RIM's win.  Last I checked, throwing money at things is a
perfect good strategy at owning them. 

~~~
joebadmo
Yes, that's generally what smart people do when they're losing an argument:
deny all terms and definitions.  That's my point: once you render it all
meaningless, it's easy to argue whatever you want, as Gruber demonstrates. 

For example: _But the bottom line is that they wanted to use these patents
competitively._ 

Why is that the bottom line?  That's in fact clearly not the bottom line, since
it completely elides the distinction that Google is making.  And calling it the
bottom line is misdirection. 

 _Some people seem to think that Android doesn’t really violate any existing
worthy patents.  That’s all just a bunch of bogus patents that never should
have been granted, and companies like Microsoft and Apple are just tying up
Android handset makers in court out of dishonest competitive spite.  If that’s
the case, then I suppose you can argue that Google’s pursuit of these patents
was out of the goodness of their corporate heart. 

But if Android does violate worthy patents, Google’s actions here are just as
competitive as any other companies.  You can guess which side I’m on, I
suppose._ 

This is maybe the most disingenous part.  The same could be said of anyone
afraid of getting sued by patent trolls like Lodsys/Intellectual Vultures. ' If
you're not _really_ violating any "existing worthy" patents, then you have
nothing to worry about.' 

"But these are the laws we have."  Indeed. 

~~~
AllenKids
Patent trove is not a defense against patent troll. 

Patent Trolls do not have any product that can be counter-sued. 

A powerful weapon against frivolous patent claims whether they are brought up
by patent trolls or litigious competitors is simply trying to invalidate such
patents, or proving that you in fact does not violate patents in dispute.  And
it can be done.  Smaller developers and individuals may not have the means to
fight the battle, which is a serious problem in itself.  But it is so not a
problem for Google I would assume. 

~~~
stanleydrew
_A powerful weapon against frivolous patent claims whether they are brought up
by patent trolls or litigious competitors is simply trying to invalidate such
patents, or proving that you in fact does not violate patents in dispute._ 

Let me say that I completely agree.  However, this assumes that pursuing such a
defense is less costly than cross-licensing or other settlement options. 
Moreover it misses the fact that owning patents almost certainly deters
competitors from suing in the first place.  That's what mutually assured
destruction is all about. 

~~~
AllenKids
Oh, I agree with you too! 

I think there is definitely something very wrong about the current system
including the legal procedure.  First we should try to eliminate (or at least
reduce if you are pessimistic like I am) nonsensical patents from being
granted for starters.  Then I strongly support reducing the period of exclusive
rights especially in fast evolving field like software and telecommunication
etc.  And then again there should be a simplified and less expensive (both
monetary wise and time wise) legal channel to at least preliminarily determine
the validity of patent dispute, I can go on. 

------
icarus_drowning
_Google’s blog post comes across as whining that Apple and Microsoft
(Microsoft especially) aren’t sitting back and allowing Android to destroy
their businesses._ 

No, Google's blog post rightly points out that Microsoft and Apple haven
chosen to fight against Android by litigation rather than invention.  If Google
where "whining" that Microsoft and Apple were building cooler stuff into their
phones, it would be laughable.  But that isn't what Google is saying. 
Suggesting that Google wants MS/Apple to "[sit] back and [allow] Android to
destroy their business" is an obvious and clumsy strawman. 

Gruber isn't arguing the merits of the platforms.  He's arguing that the patent
system as-is does work, and that Microsoft and Apple shouldn't be criticized
for using it.  The problem is, they aren't merely _using_ it, they are
_abusing_ it, which seems to suggest that it doesn't work nearly as well as
Gruber says it does. 

[EDIT: Minor grammatical cleanup]

~~~
technoslut
I've never taken this as Gruber believing the patent system is working well.  A
post from DF:

[http://daringfireball.net/2010/03/this_apple_htc_patent_thin...](http://daringfireball.net/2010/03/this_apple_htc_patent_thing)

From the post: "But for software the system, in practice, is undeniably
broken.  There’s an argument to be made that software is inherently different
than other fields of invention, different in such a way that patents should
not apply — or, should apply for a significantly shorter period of time before
expiring.  You can’t (or at least shouldn’t) be able to patent mathematics, and
there are good arguments that programming is a branch of mathematics.  But
because software patents are granted, concede at least for the moment that
certain kinds of software innovations ought to be patentable.  Even with that
in mind, clearly the U.S. Patent Office is and has granted patents for things
which ought not be patentable.  Not just silly frivolous things, but patents
that have been granted for concepts alone, rather than specific innovative
implementations of said concepts.  Ideas in the abstract, rather than
implementations of ideas." 

To me this sounds like a well-reasoned post that acknowledges the patent
system is broken.  I'm not sure if I would validate software patents at all but
it's a far better system than what's in place now. 

Also: "To me, “user interface” patents are hand-in-hand with “business method
patents” as examples of things which, no matter how innovative or original,
ought not be patentable.  They’re idea patents." 

This is just something to point out that this where Gruber and Apple do seem
to stray paths.  Gruber may be an Apple fan but it doesn't go beyond all
reason. 

Regarding the situation with Google, I do think he is mostly right.  I would
have liked to have seen Google publicly lobby against software patents in
general, with the consumer and Congress.  That is not the path they chose. 
Instead they chose to become an investor in Intellectual Ventures and play the
game of mutually assured destruction with MS, Apple & Oracle.  Doing so makes
them equally complicit in the process.  Winning the battle against these three
companies does not protect the indie dev.  It only serves Google's end which
means their motives are ultimately selfish.  If they can play selfish why can't
others who currently have the law on their side? 

------
azakai
> But if Android does violate worthy patents, Google’s actions here are just
> as competitive as any other companies.  You can guess which side I’m on, I
> suppose. 

Why not point us to such a worthy patent, then?  All the patents that have been
mentioned publicly so far have clearly been worthless and trivial. 

To make his case, a single worthy patent would suffice. 

~~~
ender7
Exactly.  Every patent that I've seen (for example, Apple vs. HTC) boils down
to _complete bullshit_.  I'd welcome someone finding a non-bullshit patent that
Android is clearly violating (possibly something with Java?  They don't use any
of the JVM technology and I don't think I could consider programming language
semantics patentable). 

Relatedly:

 _Google seems to feel entitled to copy whatever it wants.  Android copies the
UI from the iPhone.  Places copied data from Yelp.  Google+ copies from
Facebook.  Their coupon thing is a clone of Groupon.  And yet it’s Google that
acts as though it has been offended when these competitors fight back._ 

For a man who is so in love with Everything is a Remix [1], this strikes me as
an odd position.  Once things like this are up for grabs, you can start
pointing fingers all the way back to the first transistor.  There's a thick
line between "remix" and "ripoff" and I've yet to see Google cross it in a
significant manner. 

[1] <http://www.everythingisaremix.info/>

------
A-K
"I never said it wasn’t OK for “Google to try and buy the same patents to not
be sued.”  Apple, Google, Microsoft, Oracle — they’re all playing the game.  If
Google had won the Nortel patents, and used those patents to secure licensing
agreements for other patents (from, say, Microsoft and Apple) — that’s how the
patent game is played.  What I’m complaining about isn’t Google playing the
game, but rather their insistent whining about their competitors only after
they lost the game." 

Can't say I disagree. 

~~~
stanleydrew
Google isn't complaining about losing.  It's complaining about the unfair way
it believes the winners won. 

~~~
A-K
Unfair?  Through legitimately bidding higher than 3.14 billion dollars? 

~~~
nextparadigms
In your comment below, you're confusing Nortel with Novell.  Google was NOT
asked to bid for Nortel patents together with Microsoft. 

And about the Novell ones - is it still not clear why Google did it?  They did
it to get defensive patents against Microsoft.  How would they have used those
patents to counter Microsoft, if Microsoft had them, too? 

The whole point of buying patents now is to use them to keep Microsoft and the
others from attacking the Android manufacturers.  If they buy them together
with Microsoft, they can't stop Microsoft's _other_ patents. 

~~~
hullo
Yes, true.  but: that doesn't matter, at least to the argument in question. 

a. Google complains that these companies were colluding against them in the
Novell deal.  b. Microsoft shows that they were not in fact colluding against
them in the Novell deal. 

Whether or not it would have made business sense for Google to join that pool
(it clearly wouldn't have) doesn't matter within the narrow scope of whether
they're entitled to complain using the specific words they've chosen to make
their complaint, which, for whatever reason, people seem to really enjoy
discussing on the internet this week. 

------
kenjackson
Doesn't the fact that everybody is jockeying to buy the IP of _other_
companies to protect themselves from patent lawsuits suggest the system is
broken? 

One piece of patent reform that might be nice is that you can't acquire IP,
unless you have a majority of the people who created the IP under full-time
employment (or something to that effect). 

------
stanleydrew
_Google could have joined consortium to take the Novell patents off the table. 
But Google wanted those patents for itself to defend against other patents
they already infringed upon._ 

This is extremely disingenuous.  It is likely that Google would need to obtain
defensive patents whether it believes it violates any patents at all. 

------
thezilch
_Google seems to feel entitled to copy whatever it wants.  Android copies the
UI from the iPhone.  Places copied data from Yelp.  Google+ copies from
Facebook.  Their coupon thing is a clone of Groupon.  And yet it’s Google that
acts as though it has been offended when these competitors fight back._ 

The one sited source is extremely shallow, and the rest is both not sourced
and laughable.  Gruber is making quite the leap after his hand waving and
backpedaling. 

~~~
kenjackson
While I'm not a fan of Gruber I think its fair to say that he's writing to an
audience for which all of these are well known.  You may disagree with their
validity, but you're already well familiar with their arguments and evidence
-- sources probably aren't a necessity for a blog post on the topic. 

~~~
thezilch
The only reports I've read about are Apple's claims and lawsuits [against
Android handsets], which I have found fairly disingenuous when one can find
Apple borrowing from past IP.  The remaining claims I've not heard of and have
little reason they are anything but hot air and rabid FUD. 

Places copies Yelp data?  Beyond the shallow article and the sites themselves,
it is not obvious for the places I frequent.  We are not given details about
what Google was allowed to crawl, scrape, or otherwise.  Google has millions,
for any given site, of records that it will display through its search or
otherwise. 

Gruber's claims against Google Plus and Offers are him merely grasping at
straws and trying to paint Google as bad guys.  What exactly is he or "his
audience" claiming against these properties? 

~~~
kenjackson
Honestly, I'm not clear if you're arguing the validity of Gruber's claims or
that you'd never heard of them. 

I'm not saying that his audience is making any claim.  I'm saying that his
audience knows what claims Gruber is referring to.  I do agree that sources
rarely hurt, but in this case it doesn't seem crucial. 

With that said, Gruber is the guy who did a crusade against Ina Fried because
she only linked to a source and didn't spell out the author's full name.  So
given that, it's probably fair to stretch Gruber for his ommission of sources. 

------
nextparadigms
Is anyone willing to go through what Apple copies, and make a full list with
specific items they've copied from others?  Because I'm sure like 80% of the
technology used in their products is not their own, and most of the other 20%
was based on older technology. 

Look, I'm not saying Apple is not an innovative company.  It is.  But what
exactly does an innovative company mean?  Does it mean their product is 100%
based on their own technology?  90% based on their own technology? 

I doubt it even comes close to that.  Take the iPhone for example.  Did Apple
re-invent the the 2G tech in it?  The 3G one?  Did they invent the processor in
it?  What about the GPU?  Did they invent the whole multi-touch panel?  Was the
invention 100% based on their knowledge and technology if it was?  I'm sure the
UI can be de-constructed the same way, too, to prove most of it is not "brand
new". 

If they invented so much in the iPhone, why is it that they can only win
against HTC with patents from 1994 and 1996, that aren't even related to
smartphones, let alone the iPhone? 

It really bothers me to see how everyone treats iPhone as if 100% of its
technology was invented by Apple, and 100% of Android's technology was
"stolen" and "copied", because that's completely false. 

Perhaps, the iPhone has 10% of its technology that is actually new, and
perhaps Android only has 5% of it that is brand new, and because of that I
suppose you can call Apple more innovative than Google, but let's not pretend
that Apple doesn't copy anything, or let's turn a blind eye to the things
Apple copies, just because they're a little more innovative than Google. 

People need to wake up and see that ALL companies copy and base their
technology on something else, but even when they do copy it, it's usually not
a 100% carbon copy, but a derivative technology (think iOS 5 notification
system), and _that's_ how technology evolves. 

------
mcantelon
>And yes, there are some who will argue that there are no “worthy patents”,
that the entire U.S. patent system should be simply abolished. 

I like how Gruber conflates patents in general with software patents: as if
you can't have one without the other. 

~~~
stanleydrew
I noticed this too.  I don't read Gruber regularly but he seems to be either
very careless or wilfully misleading in the way that he conflates concepts. 

------
rosejn
He has to turn comments off on Daring Fireball or else he would be called out
as an Apple fanboy/lobbyist after posts like this.  Plenty of companies are
willing to compete by creating better products rather than taking their
competition to court.  The iPhone is getting pushed aside by Android and they
are playing dirty to stop it.  Unless you can point to some novel technology
that Apple should control because it was truly new and different, then Android
should be able to compete.  Just calling it "competitive" rather than offense
and defense is a political tactic that tries to make Google look just as bad
as the other guys, or conversely make Apple look just as good as the others. 
This is not a valid comparison.  Combative patent lawsuits are not a
requirement for successful businesses.  There is a major difference between
companies that choose to be litigious to stifle competition rather than focus
on creating better products at a cheaper price.  Buying a patent portfolio in
order to stifle innovation rather than to enable you to create new or better
products goes against the purpose of the patent system as it is described in
the constitution:

"To promote the Progress of Science and useful Arts, by securing for limited
Times to Authors and Inventors the exclusive Right to their respective
Writings and Discoveries." 

They should have pooled these billions to create a massive patent reform
campaign.  It probably would have been cheaper and more effective in the long
run. 

~~~
halostatue
Just a point: John Gruber has _never_ allowed comments on Daring Fireball. 
This is not a new policy nor something he chooses on a per-post basis. 

To me, Gruber is being consistent here: he doesn't like software patents (see
his commentary on Lodsys and other NPEs), but the fact is that they exist and
the way they're used now is as he describes.  Google is being disingenuous
about Android and patents; Google's lawyer _lied_ about the Novell patents and
the lie has been called out by Microsoft.  Google may have good reason to have
not wanted to go into a co-purchase agreement of the Novell patents (as Gruber
outlines in this post), but to complain of unfairness now that you lost a
bidding war?  That's childish. 

Google would actually _have_ a moral high ground if they hadn't even bid for
the Novell patents.  Not bidding for them would have been a remarkably stupid
move given the current patent/legal landscape, even though it meant that
Google gave up the moral high ground. 

Patents in the U.S. are badly broken, and I despair that software patents were
ever granted in the first place.  One of the things that I suspect that most
people who oppose software patents forget, though, is that even if software
patents were taken off the table _tomorrow_ , the existing patents wouldn't go
away.  The government wouldn't retroactively invalidate any software patent
ever granted (it'd be a hard enough fight just to get software patents blocked
for the future), and courts examining the patents tend to look at whether the
patent was (or could have been) valid at the time of its granting, not whether
it makes sense _now_. 

~~~
mcantelon
>Gruber is being consistent here: he doesn't like software patents

Funny that he doesn't say that in this post.  Nothing like "I'm against
software patents, but Google seems to play the software patent game when it
suits them".  Instead he says 'there are some who will argue that there are no
“worthy patents”' which 1) implies he's not one of them and 2) conflates
software patents with all types of patents. 

>Google would actually have a moral high ground if they hadn't even bid for
the Novell patents. 

Google _has_ the moral highground because, unlike Apple and others, they have
not been suing people over software patents. 

~~~
halostatue
Gruber's posts shouldn't be read in isolation -- and that applies to this post
and his stance on software patents; agree with him or disagree with him, he
has a _narrative_ that is consistent[1] through DF and The Talk Show. 

If you only read Gruber's posts that make it to HN, you're missing context
because he may have made other posts that provide background (and, while
Gruber's fairly good about linking back to what he's said in the past, he's
not perfect). 

If you only read Gruber's posts, you miss context that may have been building
in comments he makes in his linked list entries.  In fact, Gruber has _mostly_
avoided saying anything about Lodsys because he has been linking to others
that he feels have said what he believes more eloquently, adding a small
paragraph of commentary. 

I'm not claiming that Gruber's "perfect" by any means.  I'm simply saying that
Gruber has a narrative to what he writes that shouldn't be subjected to
soundbite treatment. 

With respect to Google, we must simply agree to disagree that they have a
moral high ground on this and other matters.  Gruber contends (and I mostly
agree) that they do not for various reasons. 

[1] I'd originally said remarkably consistent, but the only thing remarkable
about that is that so many other journalists/bloggers _aren't_.  This
consistency, by the by, is also ignored by anyone who suggests that Gruber is
an "uncritical fanboy".  Over the last year, I can think of a number of posts
where Gruber has criticized Apple fairly harshly over decisions that have been
made, including the removal of "store" buttons from the Kindle and Kobo apps,
etc. 

~~~
mcantelon
>If you only read Gruber's posts, you miss context that may have been building
in comments he makes in his linked list entries.  In fact, Gruber has mostly
avoided saying anything about Lodsys because he has been linking to others
that he feels have said what he believes more eloquently, adding a small
paragraph of commentary. 

I think it's pretty normal to base criticisms of a blog post on the blog post
itself rather than a complete reading of all of a blog's posts. 

------
beej71
So the summary is... Google comes across as whining...? 

The thing is, with a title like "More of Google and Patents", I can't quickly
tell that a link in my RSS feed is headed to daringfireball. 

There is a nice Chrome plugin I just found called "Blocker", however, so that
just put a final end to that.