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"Your Honor, I present Exhibit A -- an e-mail I posted on Twitter."

This, apparently, is where we now stand in the he said-she said battle that has become Google v. the World in regards to patents. Where to begin ...

It all started tonight with a tweet from Brad Smith, general counsel (aka lawyer) for Microsoft, who says that Google had been asked to join Microsoft in ultimate $4.5 billion bid for a suite of patents. Microsoft (and others) had a stake in that bid. Google? Tapped out at $3.14 billion. Yep. Π

According to Smith, Google could have thrown in had it wanted to. But Google apparently declined.

Now we have Frank X. Shaw  -- aka @fxshaw on Twitter and lead for corporate communications for Microsoft -- (sidebar: anyone who has a middle name that starts with the letter X is legally required to use it whenever possible) who took to the social networking site Wednesday night to respond to Google chief legal officer David Drummond's blog post that said that "Android’s success has yielded something else: a hostile, organized campaign against Android by Microsoft, Oracle, Apple and other companies, waged through bogus patents."

Shaw posted an e-mail on Twitter on Wednesday night, prefacing it with "Free advice for David Drummond -- next time check with Kent Walker before you blog. :)" The e-mail Shaw posted purportedly is between Kent Walker, a lawyer for Google, and Smith. Under the subject line "Following up," Walker explains that "after talking with people here, it sounds as though for various reasons a joint bid wouldn't be advisable for us on this one."

Shaw tweet

That's a single, solitary e-mail, with no real context or follow-up, at least publicly, from anyone actually involved. But that's not really our point here. Or maybe it is.

Like most things legal, patent law is slow, for a reason. It's also important. Far too important for discovery to take place over Twitter from Microsoft. Or in a blog post from Google. You'll see a bunch of "Microsoft strikes back" posts after this latest round. It makes for good television, and is great blog fodder (which we're admittedly taking place in now). It doesn't make for the good practice of law.

Google might well have screwed the pooch with this one and is posturing itself as best it can. Or maybe Microsoft's lawyers are stretching things a bit. That's the game, for better or worse. But that the players have found themselves in the 140-character world of Twitter is just ridiculous, if the stakes are as high as they'd have us believe.

Sources: @BradSmi, @fxshaw; via Electronista

 

Reader comments

Editorial: Keep it in the courtroom, folks

39 Comments

I think there's some confusion in the air about this.

The responses from Brad Smith and Frank Shaw are referring to the Novell patents, which CPTN (a consortium made up of Microsoft, Apple, and Oracle, among others) bought at $450 million earlier this year. The email makes it seem, but doesn't specifically mention by name either CPTN or Novell, that Microsoft looked to allow Google an 'in' into CPTN when looking at Novell's patents.

The patents that were bought by Rockstar (Microsoft, RIM, Apple et al.) for $4.5 billion were originally owned by Nortel; right now, there's been no indication that Google was invited to join this consortium at all.

To me, this hasn't really reduced Google's claim that the other companies are using patents as a mallet to beat up on Google and Android; it just makes them hostile towards the idea of getting into bed with two of your competitors just to prevent them from attacking you. While there might have been benefits at such an arrangement, Google must have evidently thought the harm would have outweighed the benefits.

In what ways would the harm our weigh the benefit? I love Android and would agree Apple and Microsoft have taken this too far, but I'm feeling a little disappointed that Google and their partners didn't do more to protect themselves from these patent lawsuits. I've yet to hear or see Google or its partners make any meaningful defense or than signing licensing agreements. What is their defensive or offensive strategy to beat back these lawsuits.

Here is the harm: Microsoft, Apple , et all create a consortium of companies to buy up existing patents that they do not own but they currently all use/license. The age old wise saying of "keep your friends close but keep your enemies closer" applies here. They all know that once they ALL own these patents collectively that they can't use them against one another. Now you might be saying "well this is a great thing!", not exactly. Don't forget that all these companies own a slew of patents of their own in their "war chest". Since they have now essentially virtually removed all these other patents that they all currently use, they can start suing one another using their own patents without the risk of someone coming in and leveling the playing field with the Nortel patents. Think of it this way: Back in the day Russia would not dare launch nuclear missiles at the US because the US has a stock pile of it's own to send over to them and vice versa. They are merely there as a deterrent in the event that someone goes crazy and decides to do something stupid, same thing with patents.

All patents should have an expiration date, much how the pharmaceutics patents have an expiration date. It allows the patent holder to make money off their hard work and after the expiration date, it will promote healthy competition to push innovation. Also, having an expiration date on patents would eliminate these patent trolls that just buy them and sit on them without ever making a single product. Right now there are no innovations because companies, especially the small ones, are afraid of litigation. There are so many patents out there that is is virtually impossible to make something that would violate a patent.

All patents have the same expiration policies. Pharmaceutical patents just seem to run out faster because they have to get FDA approval before release so all the drug trials are on their patent time. They all expire at 17 or 20 years.

... and in 17 years, you've gone through about 5 generations of devices in the tech world - Patent law has simply not kept up with the pace of things in the tech world - and that alone should signal that patents are broken in this context.

17 years is way to long. I'm thinking 3- 4 years tops. And eliminate patents that are to broad or if the company does not produce a product using the patent within a certain time line by either licensing the technology out or manufacturing it themselves.

I'm sorry, I love Android, but I just can't see how they and their consortium did have a better way to head this stuff off and how they failed to analyze the significance of patents. It just doesn't seem like they planned for it.

WOW! this whole thing is getting ugly and Nasty! I like ugly and Nasty. I wish I was on the Google team. Mud slinging and shit talking happen to be one of my many talents.

Well from the email it looks like google simply wanted to go in alone and google's point is that when you have 2 enemies (Apple and Microsoft) suddenly joining forces to out bid that raises a red flag regarding the motive behind the joint venture.But anyway Android will continue to dominate and this is a clear indication that google is winning with Android and the "magical company" along with "king of software" are nervous.

I mean these people wine and dine together while making their millions its not like they fight it out in the streets when they see each other. This is just poor excuse for entertainment.

Come on google whip it out on the table! Buy RIM (and there rights to the patents) for a fraction of the cost! That would be a big middle finger in the air to Microsoft and Apple.

Yea, Buy RIM. They just released 3 new BB's with 0S 7. After the last user experience I had on an 8310 Curve, I wouldn't touch them with a ten foot pole.

Just a note. From the article:

"(sidebar: anyone who has a middle name that starts with the letter X is legally required to use it whenever possible)"

So the guy's name is probably Francis Xavier, you know, like the saint? Why would he go by "Xavier", when he already has a perfectly good nickname, "Frank"?

What a bunch of babys... let sit back and do nothing for 4 years and now ... lets cry cause we did nothing for 4 years.
(fan boy comments bellow, )

Fan boy comment above. See colloquial use of "babys" "cry" "sit back". If you think you're not a fan boy, don't talk like one.

Im actually doing it to get people like you to react , lol and i get a kick out of it

android and apples users are the worst.

on a serious note , googles was offered to bid with MS for the same paten, google rejected , did a childish non serious BID (pi)and now they are complaining about MS and apple .. lol they shot them self in the foot, now they blame the the guy that offered medical assistance , hahaha

they evan called Windows Phone , Windows Mobile HAHAHA

i don't know about you,but it was know at the start,even before google did a bid on the patents.
that MS would be joining partners with other company's.

yet what google also knew,is that the whole patent system is broke.
and google is just waiting for a mare flick of the switch.

even if google had to pay fee's for using others patents.
google would still earn enough to out sell both WP7 and apple iphone.

but why all the complaints if they alredy knew? just for good news and good tv?? that makes no sens, and why complain about other companys buying smaller once for their paten , google been doing it for years!

they are just as bad as Apple and MS , Goodle is in no way better, if anyhting they are worst , they had the chance , they turn it down and now they complain. well you know what . its your OWn fault google,

Come on now, do you blame Google for saying hell no to Microsoft? What the real question here is, who was Microsoft really trying to keep the patients from? If it was down to only the 4 major big corporations, then why ask to join up and buy it. Google wanted the patients so they could clear their name for Android and stop Microsoft from doing OEMs like HTC . If they joined Microsoft then it would boil down to who gets what. Look at how because Apple put their share into it, they get to walk out with ALL of the patients for LTE. WTF does a software company like Apple need with LTE? It's pure BS and if Google would have signed off with them, Google would have gotten the scraps of patients and Apple and Microsoft lawsuites would still go on against Android OEMs.

they would have shared the PAtents not give scraps....

MS try to actually HELp google and google turned it down , again google shoot them self in the foot and blame the Gun.lol

I just do not get why people are upset with google.What is wrong with saying no to bid together? Now MS turns to apple a company they never get along with, doesn't that ring a bell for you.

MS and apple have been working together for years..

Iphones use Microsoft exchange servers for the e-mails + they have ALL the Mobile Office programs from MS.

MS just tried to help Google by extending their hand. and Google said NO! .

what the problem you ask! Quote from Google:

**Android’s success has yielded something else: a hostile, organized campaign against Android by Microsoft, Oracle, Apple and other companies, waged through bogus patents.**

So after Microsoft tries to help Google , they say MS is being hostile? sooo , im gona go ahead and say that made NO sense , and they sound like a bunch of Kids Fighting over Candy*

^^^^^This guy again^^^^^ (selfcreation) Learn some spelling, punctuation, and how to hold a train if thought and try again.

is insulting peoples spelling mistakes the only insult you have ?? or is insulting people the only thing your good for?

how bout you be constructive for the first time in your life? might feel better about your self instead of being a total dick.

If your spelling and grammar is so atrocious that you can't effectively get your point across, as yours is, then there is a problem.

I do not live for insulting people. I just think your a total douche. You keep trolling the threads here to talk stupid shit to get reactions out of people and you make no sense. You were arguing with Jerry H. yesterday and could not even answer his questions when he was pointing out how you were wrong. Good call on your part arguing with someone who clearly has more knowledge and insight on a topic then you do. Guess that makes you the dick.

What none of us know is...are there any stipulations to the joint bid. It wouldn't surprise me if MS had some unappealing fine-print in the agreement.

This situation is bound to be more complex and political than we know right now. But despite that - If Google had an opportunity to at least disarm this legal hand grenade, by working with Microsoft, why didn't they?

I believe Google's stance in deciding not to join the consortium is "We have a fight on our hands either way". A few posters above understand this - bravo.

Getting in bed with those two (Apple, MS) is an odd orgy...somebody will get shafted. And given the success/growth of Android in ref to the Apple/MS duo, Google is the likely shaftee.

Now whether or not Drummond saw/knew this before his blog rant is unknown. But I have to say he was aware.

I am not sure what this will all wash out to look like. I just hope Android survives!