Google-Microsoft spat could be tiny step toward patent reform

The public row between Microsoft and Google continues, with both Microsoft and Google issuing new responses to one another over Google's original accusation of patent bullying. The basic gist is this: Google says Microsoft's invitation for Google to join the Novell patent consortium was a "false 'gotcha!'" that would have put Android at a disadvantage, while Microsoft asserts that Google merely wanted to assert the same patents against others. Both parties say that the other has not directly addressed their core arguments.

The backstory

Here's the quick summary of events up to this point: on Wednesday, Google Senior VP and Chief Legal Officer David Drummond made a post on the Official Google Blog accusing Microsoft, Apple, Oracle, and others of ganging up on Google and using the patent system to take down Android. Google named the recent Novell and Nortel patent auctions as examples that Microsoft and Apple, in particular, were abusing the patent system "to make sure Google didn’t get them."

Microsoft was the first (and so far, only) one to respond to Google's accusations. Microsoft General Counsel Brad Smith and Microsoft Corporate Communications Lead Frank Shaw both called out Google for its seeming hypocrisy—Smith pointed out that Microsoft had asked Google to join the consortium to buy Novell's patents but Google said no, while Shaw posted e-mail proof of the conversation between the two companies from October 2010.

The latest

Late Thursday, Google posted an update to its original blog post on the subject in order to respond to Smith and Shaw.

"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," Google's Drummond wrote. "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."

In a nutshell, Google says it never would have wanted to make a joint bid on the patents in question, and that the argument that it declined to join in is a straw man. The company believes joining the consortium would have eliminated any protections Google might have obtained by acquiring the patents on its own.

Microsoft's Shaw was quick to shoot back, again via Twitter. (Don't worry, although there are four tweets, they're only about a sentence apiece.) "Let’s look at what Google does not dispute in their reply," Shaw began. "We offered Google the opportunity to bid with us to buy the Novell patents; they said no. Why? BECAUSE they wanted to buy something that they could use to assert against someone else. SO partnering with others & reducing patent liability across industry is not something they wanted to help do."

In other words, Shaw asserts that Google wanted the patents to itself for the express purpose of asserting them against others (such as Microsoft), instead of working with others. This, in theory, would go against Google's purported stance against the "largely questionable" patent system.

In a separate reply, Shaw said that it was Microsoft's understanding that Google had engaged in talks with Novell about the patent sale, but it's unclear as to whether Google actually made a bid. Google did make several bids on Nortel's patent portfolio, however.

Where is this going?

When Google first took this fight public, it was seen as a bold move—usually these kinds of things are sorted out between lawyers, and sometimes the government, outside of the public eye. And when Microsoft first issued its initial responses, there was a bit of an "oh snap!" moment. The public loves drama, and these two companies were definitely serving it up.

But now, it feels like the very public bickering is beginning to make both companies look childish. (Why are mommy and daddy fighting!?) There have already been half-joking calls from members of the tech press for the companies to take it outside and threats that we'll turn this car right around, only highlighting how the public's view has evolved over a matter of days. One Ars reader described the situation to me this morning in words that cannot be printed, and another said the back and forth was "getting ugly." Indeed.