Google calls Microsoft-Apple collaboration on Nortel patents anti-competitive

Google is accusing the coalition that recently purchased 6,000 Nortel patents as engaging in an anticompetitive strategy.
Written by Mary Jo Foley, Senior Contributing Editor

The gloves are officially off, as of a Google blog post on August 3: Google is accusing the coalition that recently purchased 6,000 Nortel patents as engaging in an anticompetitive strategy.

Those fighting words came from David Drummond, Google Senior Vice President and Chief Legal Officer. The blog post -- entitled "When Patents Attack Android" --follows on a report by the Wall Street Journal late last week that the U.S. Department of Justice was scrutinizing the purchase for potential anticompetitive angles.

The Nortel patent purchase was finalized on July 29. Microsoft is part of a consortium that purchased for $4.5 billion about 6,000 patents from the bankrupt Nortel (which, at one time, was a Microsoft strategic partner). Comprised of Microsoft, Apple, Ericsson, EMC, Sony and RIM, the consortium beat out Google for the bundle of Nortel telecommunications-focused patents. Apple contributed the lion’s share ($2.6 billion) to the consortium’s patent pool. Microsoft originally signaled it wasn’t going to bid on the Nortel patents, as it had a comprehensive patent cross-licensing deal in place which officials said covered the patents that were on the block.

From: Drummond's blog post:

"Android’s success has yielded something else: a hostile, organized campaign against Android by Microsoft, Oracle, Apple and other companies, waged through bogus patents.

"They’re doing this by banding together to acquire Novell’s old patents (the “CPTN” group including Microsoft and Apple) and Nortel’s old patents (the “Rockstar” group including Microsoft and Apple), to make sure Google didn’t get them; seeking $15 licensing fees for every Android device; attempting to make it more expensive for phone manufacturers to license Android (which we provide free of charge) than Windows Mobile; and even suing Barnes & Noble, HTC, Motorola, and Samsung. Patents were meant to encourage innovation, but lately they are being used as a weapon to stop it."

(The $15 per phone figure is not confirmed and may be more like $5 per phone, but that's just an aside)

Drummond said the goal of those who purchased the patents it to make Android devices more expensive for consumers. The implication is the Android phone makers will have to pass on patent royalty fees they are paying Microsoft and Apple to customers because they'll no longer be able to get the operating system for free.

I've asked Microsoft for comment on the Google post. If and when I hear back, I will add it.

Update: Microsoft PR told me the company wasn't commenting on Google's blog post. But Brad Smith, Microsoft Senior Vice President and General Counsel, just tweeted the following (which is somewhat related, but not directly addressing the Nortel patent issue): "Google says we bought Novell patents to keep them from Google. Really? We asked them to bid jointly with us. They said no.."

So... I guess that's a semi-comment and not a complete no comment (?).... Update No. 2: I asked Google last night for comment on Microsoft's Novell comment. (Are you confused yet?) I received no response. But today, Google updated its Android attack blog post and included information on Microsoft's Novell comment. From the update:

"It's not surprising that Microsoft would want to divert attention by pushing a false "gotcha!" while failing to address the substance of the issues we raised. If you think about it, it's obvious why we turned down Microsoft’s offer. Microsoft's objective has been to keep from Google and Android device-makers any patents that might be used to defend against their attacks. A joint acquisition of the Novell patents that gave all parties a license would have eliminated any protection these patents could offer to Android against attacks from Microsoft and its bidding partners. Making sure that we would be unable to assert these patents to defend Android — and having us pay for the privilege — must have seemed like an ingenious strategy to them. We didn't fall for it."

(Thanks to FOSS Patents' Florian Mueller for the heads up on Google's post.)

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