Google and Patents: When You Don’t Even Get Credit For Being Good

I know it’s a category mistake to feel human emotions toward a corporate entity, but I can’t help feeling sympathy for Google when I see articles like this (which come out all the time — this one just happens to be today’s example):

“A new patent could position Google as the world’s dominant identity platform”

But before I start ranting, let me fact check:

Does anyone know of any instance of Google pre-emptively filing a patent infringement claim or threatening the same? That is, not as a response to an incoming patent threat, but as a first-strike move intended to monopolize a market by blocking out competitors? Responses in comments, please.

If it’s happened, I haven’t heard about it. As far as I can tell, Google collects its enormous piles of patents simply as a defensive measure: if everyone around you is armed to the teeth (and some of them, like Apple and Oracle, actually use their weapons on a regular basis), then you don’t really have a choice about whether to arm yourself. The question is just how much budget and preparedness you’re going to devote to it, as opposed to conducting your actual business.

So when I see articles like the above, saying stuff like this…

Earlier this week Google was granted a US patent that could position the company as the world’s dominant identity platform with the potential to control hundreds of millions of personal identities. The implications – both beneficial and threatening – are significant.

Superficially, the concept behind the patent appears benign enough. The patented system has the ability to create different pseudonymous identities for users, meaning that users could decide who gets to see their real identity as opposed to a pseudonym, but with each identity secretly linked and thus carrying an equal degree of integrity. That means a person could establish a more flexible and trusted relationship with other users without disclosing a real world identity. …

…I wonder if I’m missing something, or if the author just hasn’t been watching the company’s actual behavior very closely.

Corporate culture matters. As far as I can tell, starting from the people at the top, Google is fundamentally uncomfortable with government-granted monopolies on technology and business methods. Maybe they just feel that using patents for supply manipulation is short-term thinking, or maybe they feel it’s wrong, but either way, I do not recall having seen Google use those monopolies to establish or maintain market dominance (again, corrections welcome). Their large patent portfolio seems to be held mainly for defenses against incoming patent threats… which is the case for many companies, and just demonstrates the insanity of the system.

Meanwhile, the rapacious climate encouraged by the companies that do use their patent portfolios aggressively causes everyone to be tainted with suspicion, leading to articles like the above.

Disclaimer: I worked at Google briefly in 2006, then left amicably to pursue other ambitions. I’m still on good terms with colleagues from that time, but I have no financial interest in the company.

6 Responses to “Google and Patents: When You Don’t Even Get Credit For Being Good”

  1. Aaron Williamson Says:

    Google (via its recently-acquired Motorola Mobility division) filed its first (AFAIK) offensive patent suit in August: http://www.inquisitr.com/306430/motorola-mobility-files-patent-lawsuit-against-apple-asks-for-ban-on-iphone-ipad-and-macs/. Whether this represents any sort of fundamental shift in patent strategy has yet to be seen, but generally my expectation for huge corporations is that when corporate culture conflicts with the bottom line, it’s the culture that gives. I can’t think of a single large tech company of any longevity that has broken this rule.

  2. Karl Fogel Says:

    Thanks, Aaron. But is this not just a retaliation against Apple for earlier patent suits against Google? That is, intended as a deterrent to Apple continuing that behavior?

    To be “defensive” doesn’t mean “only done as a preventative measure to keep a threatened harm from becoming a real harm”. It can also mean “done to force detente in a particular arena”.

    Probably a better way for me to have asked the question would have been: Has Google ever initiated a patent claim against a company that hadn’t already made patent-based threats or claims against Google?

    I’m definitely willing to abandon my hypothesis, which is tentative. But… Apple? 🙂

  3. Ellen Spertus Says:

    Google has made public statements about its patent stance. See, for example, http://googleblog.blogspot.com/2011/04/patents-and-innovation.html

  4. Aaron Williamson Says:

    Sure, this can be characterized as defensive in the larger context of the war between Apple and everyone Google does business with. But this isn’t “defensive” assertion in the way we usually talk about in patent litigation. Moreover, it’s arguably not just defensive but a form of massive retaliation — Apple came after a few (ok, a lot of) Samsung devices and Google fired back at basically every Apple product. And as silly as Apple’s slide-to-unlock and design patents are, blocking importation of a laptop based on OS X’s implementation of iMessage is perhaps even more ridiculous.

  5. Mike Linksvayer Says:

    Corporate culture does matter, but it would be naive to assume a low probability of change in a negative direction.

    If Google were to commit to defense-only via something like the proposed “Defensive Patent License” (I think “League” would be more descriptive of the mechanism than “License”) then I’d feel sympathy for Google when reading headlines like the one you pointed out.

  6. Karl Fogel Says:

    Ellen, thanks for the link!

    Aaron, Mike,

    The current situation with Apple, Android, Samsung, and Google is a good example of why a defense-only promise is very hard to do right.

    How do you word it so that Google can provide ecosystem-wide defense against patent attacks on Android even when those attacks are not formally directed at Google?

    That’s the scenario here: Google launches Android OS project, as a long-term strategic move to support a handset device environment that’s not controlled by one hardware vendor (you know whom they’re thinking of). Google even does periodic open source releases to provide assurance that they don’t intend to be the lock-in vendor either, as well as to maximize the development efficiency of device manufacturers.

    Samsung then uses Android in its devices, exactly as Google wanted. Then Apple sues Samsung for patent violations — this is as much a threat to Google as it is to Samsung, and everyone involved knows it. The device manufacturers are, in a sense, relying on Google for informal indemnification here. But if Apple hasn’t formally sued Google, what kind of defensive patent pledge would enable Google to take the obvious steps to defend Android?

    I can only think of one:

    We pledge to only threaten or initiate patent infringement claims against parties who themselves have threatened or initiated patent infringement claims against some other party (not as a result of this pledge).

    While a recursive “you totally opt out and we’ll totally opt out” pledge is very attractive, you can see how it might be a bit… broad… for Google or any other company to sign on to.

    I’m not sure the proposed Defensive Patent License works quite this way, in that it requires the parties being defended to have explicitly signed up. What if Samsung (for whatever reason) doesn’t sign up? Maybe they just don’t want to; maybe they have jurisdictional issues due to different anti-trust laws; who knows? My point is just that one has to be able to respond to patent-based threats even when not all the defense-side parties involved are on board with the strategy or have signed particular agreements. (If I’m misunderstanding the Model DPL, please tell me to go read more carefully and I will do so!)

    I love the idea of defensive patent pledges. But whenever I think of the real world situations a patent-holding (but non-aggressor) company might find themselves in, I can never come up with a pledge that wouldn’t bind their hands in ways that could hamper their ability to defend against technology monopolists. IMHO, what Google has done is effectively the same as if it were abiding by the DPL — it’s just that there are good reasons why it can’t sign on.

    Massive retaliation is, unfortunately, probably the only effective response. The other side has to know they have a lot to lose if they initiate these things, otherwise they won’t change their behavior (for example, sign the appropriate cross-licensing agreements). I don’t like the weapons, but it’s still important to pay attention to who fired first.

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