Google says it didn’t want Novell patents if everyone got them [Updated]

David Drummond, Google’s Senior Vice President and Chief Legal Officer, has updated his blog post from yesterday that claimed that Apple, Microsoft, Oracle and ‘other companies’ were engaged in a ‘hostile’ patent war against the search giant. In the update, Drummond explains the reason why it didn’t bid against Microsoft and Apple in the Novell patents auction. Updated with Microsoft response below.

Drummond comments on Microsoft’s Frank Shaw releasing a letter showing that Google declined to bid on some of the patents that they are now complaining about being used against them, saying that it was “not surprising that Microsoft would want to divert attention by pushing a false “gotcha!” while failing to address the substance of the issues we raised.”

Drummond then goes on to say that it is ‘obvious’ why Google didn’t bid on the patents: It didn’t want them if everyone could have them, because then it couldn’t use them to defend itself.

Microsoft’s objective has been to keep from Google and Android device-makers any patents that might be used to defend against their attacks. 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.

So basically, once Google figured out that they wouldn’t be the only ones with access to these patents, and that it would basically give them a stalemate, allowing them no leverage over patents gained in the Nortel auction, or elsewhere, it effectively dropped its bid. If it couldn’t gain some sort of decisive advantage with the purchase, then it figured it was a waste of money.

In the case of the Novell patent auction, Google takes solace in the fact that the Department of Justice ended up forcing Microsoft to sell off the patents that it had purchased, largely because Microsoft was already a licensee of many of them. In addition, the DoJ made the entire group, including Apple and Oracle, provide licensing to the open-source community, which is where much of the code that powers Android originated.

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There is also the possibility that the DoJ might force a similar consortium of companies, including Apple, to do the same thing with the roughly 6,500 patents purchased in the Nortel auctions, also related to telecommunications. This would work out in Google’s favor as any code that fell under the open source licensing would mean one less bit that Google would have to defend.

Google is definitely pulling out all of the stops when it comes to painting Android as the beseiged victim of bullies like Apple that hoard patents to use against Google while denying the company the chance to obtain them for itself.

Our competitors are waging a patent war on Android and working together to keep us from getting patents that would help balance the scales.

The image that Google is trying to project here is innacurate to say the least. They didn’t bid on the patents because they’re only interested in gaining patents that give them leverage for licensing and protection of the Android brand. In effect, they’re only interested in purchasing patents that give them an advantage, not ones that only put them on equal footing.

That’s why the upcoming sale of mobile tech company InterDigital’s 8,000+ patents will be such an interesting one to watch. Apple and Google are both interested in them, of course, because the patents cover much of the tech that modern mobile phones use. They’re not the only ones who smell blood in the water over InterDigital’s patent holdings either as Samsung, looking to build itself a defense against Apple’s patent claims, has also been approached to invite a bid.

This summer has been a hot one when it comes to patent litigation and it promises to get a whole lot hotter as some of the biggest mobile companies in the world slug it out for the weapons they need to protect their creations against competitors.

Update: Now, Microsoft has responded again to this latest update, in the form of a Tweet from its head of Corporate Communications, Frank Shaw. There is really a series of Tweets responding to Drummonds update but the most pertinent is this one, speaking to why Google didn’t bid on the Novell patents:

Why? BECAUSE they wanted to buy something that they could use to assert against someone else.