Google's top lawyer rips Apple, Microsoft and Oracle

David Drummond, Google's senior vice president and chief legal officer, says the tech troika's attacks on Android patents serve to stifle innovation and drive up costs.

Jay Greene Former Staff Writer
Jay Greene, a CNET senior writer, works from Seattle and focuses on investigations and analysis. He's a former Seattle bureau chief for BusinessWeek and author of the book "Design Is How It Works: How the Smartest Companies Turn Products into Icons" (Penguin/Portfolio).
Jay Greene
5 min read

Google's top legal officer today posted a scathing indictment of adversaries Apple, Microsoft, and Oracle for pursuing "bogus" patent claims that may serve to drive up the costs of phones using Google's Android mobile operating system.

Google's David Drummond Google

Google Senior Vice President and Chief Legal Officer David Drummond paints a picture of rivals envious of Android's success, noting that more than 550,000 Android devices are activated daily.

"But Android's success has yielded something else: a hostile, organized campaign against Android by Microsoft, Oracle, Apple, and other companies, waged through bogus patents," Drummond writes in a post under the heading "When patents attack Android."

The three rivals are pecking away at Android, suing Google for violating various patents in creating the popular operating system. Oracle filed suit a year ago, accusing Google of infringing on patents related to Java, which the database company acquired when it took ownership of Sun Microsystems in early 2010.

Microsoft has taken a different approach, suing device makers who use Android, including Barnes & Noble, which makes the Nook electronic reader, and Motorola. The software giant has also induced several companies, most notably HTC, to pay patent licensing fees for using Android to avoid being sued.

In late June, Apple was part of the consortium of technology companies, along with Microsoft, that won the bidding with a $4.5 billion offer to take ownership of Nortel's portfolio containing some 6,000 patents and patent applications for wireless, wireless 4G, data networking, optical, voice, Internet, and semiconductor technologies. Apple staked $2.6 billionof that offer. The group outbid Google.

Drummond writes that all those legal actions and patent purchases don't merely thwart Android.

"Patents were meant to encourage innovation, but lately they are being used as a weapon to stop it," Drummond writes.

Apple, Microsoft, and Oracle officials all declined comment to CNET. But later in the day, Microsoft's general counsel and senior Vice President Brad Smith suggested in a tweet that Drummond misrepresented Microsoft's intentions with regard to buying Novell patents, acquired earlier this year through a partnership that includes Microsoft, Apple, and Oracle.

"Google says we bought Novell patents to keep them from Google. Really? We asked them to bid jointly with us. They said no," Smith wrote.

To back up Smith's assertion, another Microsoft executive produced an e-mail that seems to back up a claim that Google turned down an offer to be part of the winning bid for Novell patents last year. Microsoft corporate communications chief Frank Shaw posted a photo of the following e-mail dated October 28, 2010, from Kent Walker, Google's general counsel, to Microsoft's Smith on his Twitter feed:


Sorry for the delay in getting back to you--I came down with a 24-hour bug on the way back from San Antonio. After talking with people here, it sounds as though for various reasons a joint bid wouldn't be advisable on this one. But I appreciate you flagging it, and we're open to discussing similar opportunities in the future.

I hope the rest of your travels go well, and I look forward to seeing you again soon.


Drummond begins his post by noting what strange bedfellows Apple and Microsoft make.

"I have worked in the tech sector for over two decades. Microsoft and Apple have always been at each other's throats, so when they get into bed together you have to start wondering what's going on."
--Google attorney David Drummond

"I have worked in the tech sector for over two decades. Microsoft and Apple have always been at each other's throats, so when they get into bed together you have to start wondering what's going on," Drummond writes.

He sees their banding together to acquire the Nortel patents as a direct assault on Android, which has quickly surpassed both the iPhone and devices running the Windows Phone and the previous Windows Mobile as the top selling smartphone operating system in the United States. He goes on to note that smartphones might face up to 250,000 "largely questionable" patent claims, which serve as a "tax" on the devices.

"Instead of competing by building new features or devices, they are fighting through litigation," Drummond writes.

Of course, that's the common cry of the accused in patent litigation. Rather than acknowledge infringing, defendants accuse plaintiffs of trying to stifle innovation in the courts.

And Google is clearly not above using some of the same tactics to protect itself from patent litigation. The company also bid on the Nortel patents. And it's reportedly looking into buying wireless technology company InterDigital for its wireless patent portfolio.

"We're also looking at other ways to reduce the anticompetitive threats against Android by strengthening our own patent portfolio," Drummond writes, without mentioning specific companies.

Drummond's post pays homage to an investigative piece by NPR's "This American Life" last month titled "When Patents Attack," chronicling how software patents have gone from a protective measure for technology companies, to a big business for nonpracticing entities--companies that licenses patents but doesn't actually have any other business.

Lately that behavior's centered around the the targeting of mobile app developers on both Apple and Google's mobile platforms by entities like Lodsys and MacroSolve. Earlier this year these intellectual property holders began targeting companies big and small for allegedly infringing on patents held, offering up licensing deals at the risk of litigation if such a deal could not be struck. As a result, Apple tried to step in and shield developers on its platform, saying its own license covers the activity being targeted. Groups like Article One Partners have also served as conduits for groups looking to get patents from Lodsys and MacroSolve invalidated, using crowdsourced research that aims to find prior art.

CNET Staff Writer Josh Lowensohn contributed to this report.

Updated at 2:05 p.m. PT with more details and analysis.

Updated at 3:55 p.m. PT with Microsoft declining to comment.

Updated at 4:52 p.m. PT with Microsoft general counsel's tweet about the Google blog post.

Updated at 5:50 p.m. PT with Apple declining comment.

Updated at 10 p.m. PT with Kent Walker e-mail.