Daniel Eran Dilger
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Why is Google playing the Cold War patent game in the age of patent terrorism?

Daniel Eran Dilger

Seems hard to believe it was only one year ago that Google was rattling swords at its Google IO conference, comparing Apple and its iOS to North Korea while advancing Android 2.2 Froyo. What a difference a year makes. Now, rather than arrogantly bragging about how Android would crush and humiliate Apple’s axis of evil, Google has shifted into weeping about how other players in the mobile industry are threatening it with intellectual property claims
Further, rather than working with the industry to meet the modern dangers of patent terrorism from rogue patent troll cells, Google is trying to mount a Cold War style arms race to protect itself and its licensees from the results of willful infringement of other companies’ patents, from Oracle to Microsoft to Apple.

Back in the day, big companies with intellectual property issues, such as Microsoft and Apple, settled their differences by cross licensing, just as the Cold War superpowers kept things in check by maintaining huge arsenals of nuclear warheads that neither dared to actually ever use.

But today, the security threat isn’t coming from the other superpower. It’s coming from generals in the patent game who realize how valuable patents can be, and have defected from their cause to create independent groups intent on causing widespread damage.

Meet the new patent arms dealers (don’t say terrorists, they don’t like that word)

One is John Desmarais, who formerly represented big companies in their patent antics as a partner of Kirkland & Ellis. In 2007, he helped Alcatel-Lucent win a $1.52 billion patent verdict against Microsoft, although that verdict was subsequently overturned and the two companies negotiated a private settlement.

Just before stepping into to represent Apple in its ITC argument with Nokia, Desmarais realized he could make far more money owning patents than in defending companies from attack. Desmarais had acquired 4,500 patents from Micron Technology in late 2009, and has gone into business as Desmarais LLP, an eight attorney law firm aimed at monetizing the patents held by his patent troll company, Round Rock Research.

Google should be aware of the threat of such operatives, as while Desmarais hasn’t yet sued Google itself, it has already filed claims against prominent Android licensee HTC. That’s the kind of issue that Apple and Microsoft are now united in battling.

Fighting the industry rather than the instigator

Google, as it articulated in its blog post accusing Apple and Microsoft of conspiring against it, is very much a developing country that has never had much clout in the patent wars, like an emerging India or China or, say, North Korea, with aspirations to become an important power just by accumulating the firepower to retaliate to imagined threats from the West.

Today’s existing superpowers are both mystified and somewhat entertained by the notion that these pissant countries really see themselves as puissant nations, even as their real attention remains focused on the modern threats of extremist religious conservatives who want to blow up buildings or shoot children to get attention.

How did Google end up with both majority market share and an persecution complex? And why does it think the tech world is still operating under the antiquated rules of the Cold War rather than recognizing the real threat of patent terrorism? Understanding this insanity requires a historical overview of how Google put itself in the position of, I can’t help it, North Korea as a diminutive braggadocio running a bankrupt little copycat nation that it is clearly not equipped to run.

This all happened before

One year ago, while Google was calling Apple North Korea, it was also launching its latest version of Android 2.2 Froyo, a new line in the sand drawn with Apple even while the two were still locked in their curious partnership.

Google’s Froyo was a bit like Microsoft’s Windows 95: the marked end of any pretense of respect for Apple’s original user interface intellectual property, and the shameless beginning of a wholesale rip-off of any and all intellectual property that might be between it and market dominance.

Remember when Google used to gingerly step around such ideas as Apple’s multitouch patents in Android, encouraging its licensees and customers to deal with an inferior operating environment out of purely ideological support for something that wasn’t from Apple?

Blind hatred for Apple doesn’t exempt vendors from the results of churning out absolute crap, at least once they move from their core audience of haters to the broader, mainstream market that expects stuff to actually work. Microsoft learned that in the days of Windows 1.0 and 2.0 and 3.0, and Google began realizing that in its first three releases of Android as well.

And so Google dropped the charade of being respectful of Apple’s original iPhone patents and jumped wholesale into the role of Microsoft in the 1990s, with the result that its clumsy, heinously ugly Android began to take on far more of the usability and refined looks of Apple’s mobile platform. Licensees like Samsung further finessed Android to look as identical as possible to Apple’s products, exercising faith in the words of Abraham Lincoln that at least some of the people could be fooled all of the time.

Apple’s initial response to Google during 2010, the Year of Android, was to simply release iOS 4 and the new iPhone 4 hardware that stalled the momentum of Android as a platform, eventually convincing Verizon to pick up the new iPhone early the next year after its Droid-branded Android sales flatlined.

Google’s response was to target Apple TV and the iPad with two new Android initiatives, Google TV and Android 3.0 Honeycomb, both of which attempted to compete against Apple by leveraging the things Google was good at (such as search and web apps), rather than just simply copying Apple as it had in the smartphone arena.

That all happened before, too

This again bears striking resemblance to Microsoft and its efforts to shift from copying Apple to simply competing with Apple. Like Microsoft, Google failed miserably at trying to beat Apple at its own game without simply cheating. Google TV was an abysmal failure that nearly destroyed its licensees singlehandedly, while Honeycomb has only managed embarrass any company that might dare touch it, just like Microsoft’s PlaysForSure and Windows Phone 7.

Both Microsoft and Google are now left trying to generate excitement for a web platform running on ARM chips, as if the world needs another webOS from a company other than HP. The key difference however, is that today’s beleaguered Microsoft, like the Russian leadership of the former Soviet Union, isn’t still trying to maintain a superpower fight with the West based on mutually assured destruction. Instead, Microsoft sees the value in working with Apple and others to disarm as effectively as possible those who would try to leverage the latent power of the patent to threaten widespread damage if their demands are not met.

And so it is that Apple and Microsoft and various other competitors in the marketplace are forming consortiums to prevent these weapons of mass destruction from falling into the hands of patent terrorists. But not Google. It wants to build a patent arsenal that will give it bargaining power in talks that question why it has decided to shoot missiles at the coastlines of its former allies and trading partners in a banana republic style show of firepower and nationalist pride.

The most curious aspect of Google’s North Korean behavior is that it sees the need to beg for the approval of the public, writing blog missives that accuse the West of threatening its right to attack them without reprisal. Google is like the little gangbanger who walks around shoving his gun in the face of terrified old people to prove himself, then complains on his blog that he’s being oppressed by the man for having to pay rent for the property he occupies.

Get real Google. Stop biting the teat the feeds you. Your behavior is getting rather shameful.

  • JG

    I just want to say I’m glad you’re back to writing! I really missed the articles

  • grockk

    Google really are acting crazy in this. Another good response here http://brianshall.com/content/google-are-pussies

    Good to have you back!

  • itotah

    I almost stopped checking in for your articles. Glad I didn’t give up. Some of the crap that comes out of Google is astounding. Stealing is not competition — it’s stealing. There’s no difference between intellectual property and a television set I help myself to next time I’m at Best Buy. Honest competition would be to respect the inventions of other and build a better mouse trap — not clone the trap someone else built and whine when they threaten to sue you (or buy “missiles” to keep them from suing you). The defense against theft, by Google’s logic, would be to buy other patents and use them as leverage. Make perfect sense — if you’re a thief. Apple makes it’s money by creating great products that people want to own. They should sue the hell out of the thieves that steal their ideas, or they will face the same prospects of Apple of the 1990’s. Apple doesn’t need patents for leverage. They need to keep them out of the hands of thieves that illegally clone their ideas. I think Google should move their headquarters right down the street from one of Apple Store clones in China. They’ll be right at home.

  • Maniac

    A little over a year ago, Google was in fact showing signs of being Microsoft-ish. Now they’re in full “damn the torpedos copy Apple no matter what” mode. Even the walled garden approach with Honeybomb. I mean Honeycomb. And they seem to have stopped the “Yay open” spin.

    Anyway, glad to see you back at Roughly Drafted. Please tell us you *didn’t* have another motorcycle accident.

  • addicted44

    Good to read your entertaining (albeit hyperbolic, which is what makes it great!) writing again, Dan.

    What makes Google worse than MS is that unlike MS, who never pretended to be anything other than what they are, Google tries REALLY HARD to wrap themselves in the SuperopenMan cloak.

    Its the wolf in sheep’s clothing aspect of Google that really worries me.

  • http://themacadvocate.com TheMacAdvocate

    Google’s thinking, which IMO was fundamentally flawed and ended up seriously backfiring, is that acquiring patents via consortium does nothing to innoculate Android’s for its past transgressions. The Nortel patents would have theoretically allowed them a counterpunch that could be used against the Microsofts and Apples. Unfortunately for Google, they lost the auction. Instead of being on a winning team and deflecting *some* future IP liability, by making cutesy mathematical constant bids and turning away partners like Microsoft, they managed to heap more exposure onto their plate.

  • FreeRange

    Welcome back Daniel! We missed you! Great piece. Google IS the new evil.

  • ericgen

    Ditto everyone else on the “Great to have you back!”.

    I couldn’t believe you were going to let this story slip by without your wonderful commentary. One wonders what sort of world they’re living in over there in Google-land. It’s kind of like Bill Gate never considering that other people, or the government prosecutors, might ever read his past emails.

  • Imapolicecar

    Welcome back Daniel. I’ve missed your articles. However, this one has some very strange paragraphs. Can you explain the following please?

    “Google, as it articulated in its blog post accusing Apple and Microsoft of conspiring against it, is very much a developing country that has never had much clout in the patent wars, like an emerging India or China or, say, North Korea, with aspirations to become an important power just by accumulating the firepower to retaliate to imagined threats from the West.”

    Errm, forgive me if I’m wrong but there are few imagined threats from the West. India (democratic), China (faceless beaurocracy) and North Korea (charismatic dictatorship) may have little in common with the US (oligarchy), they actually haven’t started many wars between them in the last 40 years while the US has been up to its neck in creating wars around the world every year for the last 100 or more. That’s a damn good reason to feel rather paranoid I feel. Given that China is bordered by 14 other countries (some with nuclear weapons and some not so nice as well) while India fewer countries but also bordered by irrational states with nukes, accumulating military forces seems to be quite a normal thing to do. You may instead wonder why the US (bordered by two countries which are mostly benevolent) has built up the largest arsenal in the world and keeps at least a third of its own people in abject poverty and is the only Western state with no universal health care.

    “Today’s existing superpowers are both mystified and somewhat entertained by the notion that these pissant countries really see themselves as puissant nations, even as their real attention remains focused on the modern threats of extremist religious conservatives who want to blow up buildings or shoot children to get attention.”

    Hmm. again odd. The US is the only superpower left in the world. Hardly a world with ‘superpowers’ as you say. If you wanted to add any other country it would probably have to be China – which you dissed in the last paragraph as wanting to be a wannabe!

    Perhaps you should reconsider your political analogies a little more carefully?

    Otherwise, keep up the excellent work!

  • Mike


    Yeah, political analogies have never been Daniel’s strong points. But it does get the point across.

  • relativity

    Tech != Politics. Tech == Innovations.

  • enzos

    Dan, a handy reference if you’re comparing politics, patents and tech:
    >The differing effects of China’s unity and Europe’s disunity on innovation and growth have been remarkable. China’s unity gave it an initial advantage over Europe in terms of technology and idea diffusion. Once development in the resource-rich climate of Europe got off the ground, however, its decentralized environment stimulated continuing innovation. Europe’s geographic barriers were formidable enough to prevent political unification but not technological diffusion. The competitive environment this created meant that a principality that did not pursue or adopt an innovation would be left behind economically. In Europe, numerous ideas that were initially rejected were eventually adopted, copied, improved upon, and spread, including firearms, electric lighting, and printing. In China, political unification allowed centrally made poor decisions to be implemented over a wide area. Europeans did make self-defeating decisions, but these had a different effect in its decentralized environment than they would have had in China. Some other neighboring prince or king ultimately tried a better policy or adopted a rejected technology. Ideas spread so fast that patent rights were developed in Venice in 1474 and spread to much of Europe in less than one hundred years.
    – fr. Jared Diamond ‘Guns Germs & Steel’
    quoted in ‘Economic Development: A Case for Visionary Leadership’ http://www.fpri.org/orbis/4702/weisenfeld.economicdevelopment.html

  • broadbean

    Well, well, well – even picked up by PhilipED @Fortune!


  • Imapolicecar


    Just about sums it up but Diamond ultimately leaves out the education systems. The Keju, which was designed to create loyal civil servants through a grueling examination system ultimately only let through 2-3% of all applicants and was replaced (although not for the same purposes) by the gaokao (university entrance in China) which ultimately does the same thing – creates teaching to the test (think of this as the US govt. moves towards more standardized testing). The result has been the destruction of innovation in China where goakoa students start ‘learning for the test’ from the age of 8 onwards (they take it at 18 years) and this has been recognised by the Chinese government but despite a liberal curriculum the whole secondary education system is geared to passing the test which means real teaching of anything worthwhile gets ‘never taught’. Gaokao students study for endless hours but learn very little. Many of them enjoy learning to ride a bicycle or going for walks after they finish their goakao because they had no time for it previously. The result is summed up by a saying that. “the Chinese are the world’s experts in the last best technology.”
    The other reasons that tech companies sometimes have difficulties penetrating the Chinese market is also unusual. It’s not that China’s a necessarily closed market it’s more that outside companies don’t understand its market applying their ‘standard’ practices without learning what the Chinese market is. (you can read about this in detail in the book Red Wired.) Essentially, tech companies fell flat on their faces (for instance not really considering that the Chinese don’t use credit cards as a norm but on-line banking for payments). It’s the same story as Coca Cola being outsold in Scotland by Irn Bru because it didn’t understand its competitor, or why there are no Starbucks in Italy (mass failure because the Italians will only drink coffee not what Starbucks tries to pass as coffee).

  • Steve Sabol

    Google is the Winona Ryder of technology. They built their core business stealing other people’s content, then buy a video site based on stolen content, and now they’ve built an entire platform using the same strategy.

    They just can’t help themselves.

  • http://www.cyclelogicpress.com Neil Anderson

    Google has never respected others’ IP.

  • enzos

    Thank for that! Now that’s a sociological insight I didn’t expect to get on a tech forum! In Diamond’s terminology education would be a proximate cause, itself caused by the stable (/stale) political system (and geography the ultimate cause, as argued at length in GG&S).

    Your take on the product of Chinese education tallies with my own – albeit limited – observations. That is, my experience of chinese graduate students in Chemistry. In particular, I had PhD hopeful at my previous university who had been in the top 0.3% at school (an elite school) and top 5% at university (an elite university), who had plenty of experience in teaching/tutoring in China universities, and who proved totally clueless when confronted with a kinetics project that required a bit of creative tinkering / thinking. (She ran away after a year to do a dull-as-batshit biochemistry project with a join-the-dots methodology and assured results.)

  • cadillac88

    I can’t believe I ever rooted for google.

  • gus2000

    Google wanted information to be “free” to be indexed, but they quickly went all Stallman-esque and decided that there was no such thing as intellectual “property”.

    When both Apple AND Microsoft think you’re nuts, then you have seriously walked off the reservation.

    Sadly, there are few winners in the IP Law game. The plagiarized victim can be compensated monetarily, but the lost market opportunities cannot be undone.