So what Drummond is saying is that Microsoft’s offer to team up with Google to buy the Novell patents was more or less a trick. By teaming up on the Novell patents, Google would have them, but they wouldn’t have been able to have been used to protect Android, because Microsoft would have had them too.
Should Google have just gone along with that anyway, since ultimately Microsoft did get them (along with Apple, Oracle, and EMC)? You could argue that. But fortunately for Google, the courts intervened in that deal and made Microsoft sell off the patents they bought and made the others in the group license the rest, Drummond notes.
This may go a bit deeper too. It’s conceivable that Microsoft knew Google would never go for this joint-acquisition plan, but offered it anyway so that when the DoJ did look into the deal, Microsoft would point to the offer sent Google’s way. These companies are very smart and calculating, don’t put something like this past either of them. [Emphasis added]
Ain’t life grand? On the substantive question raised by this intra-corporate beef, Tim Lee is as always a reliable guide:
Right now, Google and its licensees are facing accusations that they’ve infringed hundreds of patents. Fighting those patents one at time is an impossible task; even if 90 percent of them are “bogus” (which they probably are), the non-bogus 10 percent will be more than enough for companies like Microsoft and Oracle to extract billions of dollars in royalties.
A far-ranging debate about the merits of software patents in general—rather than the validity of the particular software patents Google allegedly infringes—would be in Google’s interest. If Google’s opponents start to worry that prolonged litigation could strengthen the case for new subject matter restrictions—potentially leading to having their entire portfolio invalidated—they’re going to be more inclined to reach a quick settlement.
And this is the ideal time to do it. The unprecedented volume of litigation has driven an unprecedented level of interest in the subject from mainstream outlets like NPR and the Economist. In a few years, it’s going to be painfully obvious that this year’s patent reform legislation didn’t fix the problem. So if abolition is the right reform (and I think it is), then companies that say so early are going to look prescient.
I can think of only one counter-argument that seems remotely convincing: perhaps one wouldn’t want the cause of abolition to be tarnished by its association with Google, though of course it’s not obvious that this would hurt the cause rather than lend credence to it.