Thursday, March 28, 2013

Google's promise not to assert 10 patents against open source software: just a PR stunt

In 2005 certain companies (IBM, Sun Microsystems, Computer Associates) promised not to assert select patents against open source software. They all got some publicity for their announcements, but after a while it was easy for everyone to see that those pledges had not changed anything, particularly because they involved relatively limited numbers of patents. The problem with patent pledges and pools is not what's in them -- it's what's not in them. As a result, those pledges didn't prove to be helpful in any way (I'm sure that not even one lawsuit has been avoided because of those pledges) and quickly fell out of favor. For almost eight years no major industry player joined these companies in publishing a list of patents that would not be asserted against open source.

Then came Google. Today it pledged a total of ten patents. Ten. By comparison, IBM had pledged 500, and Sun approximately 1,600.

Not only in absolute numbers but also relative to portfolio size, Google's pledge is the least generous one ever. I criticized IBM for making available only about 1% of its portfolio; in Sun's case, the pledge actually involved far more than 1% of the company's patents at the time. For what I know, Google owns at least 17,000 patents (including, of course, the ones it acquired as part of the Motorola deal and a series of transactions with IBM). 10 patents are a small fraction of a percent of Google's portfolio.

In 2011 Google gave nine patents to HTC, which immediately sued Apple over them (that was the idea behind the deal). A company that gives nine patents to a single Android OEM to sue only one particular rival could pledge more than ten patents to open source if it wanted to.

Why should a concept that failed with far larger numbers of patents eight years ago suddenly be the answer, with a far smaller number of patents involved this time around?

I don't know what Google has in mind as the next step. Will it make more patents -- possibly all of its patents -- available on these terms in an attempt to commoditize and devalue intellectual property and innovation? Or will it continue to keep the good stuff back (search-related patents, for example)?

Whatever Google's plan may be, an initial pledge of 10 patents is much ado about almost nothing. The focus should be on what companies do with their overall patent portfolios, not what they do with a tiny number of patents.

There's an example of an open source patent promise covering an entire portfolio: the Microsoft Community Promise was not limited to a particular list of patents. It's a promise Microsoft made (when it formed a partnership with Novell years ago) not to sue individual open source developers over any of its patents (and not just ten patents). By contrast, Google reserves the right to sue open source developers over at least 17,000 patents it owns but hasn't pledged.

I'd actually like to know how many patents -- and which ones -- Google really owns. It has done a number of patent purchases over the last few years, not just the acquisition of Motorola Mobility and certain transactions with IBM. But I'm not aware of a complete and public list of all the patents Google controls. Transparency is key. Also today, Microsoft launched its Patent Tracker tool, which gives every interested party access to a complete list of patents held by Microsoft. Its patent list is available as a comma-separated value (CSV) file, which can be viewed, searched and sorted with spreadsheets and database programs. I downloaded it, opened it with Excel, and saw that it has almost 39,000 rows. Google also provides a patent search: it has indexed various patent registers. But Google's patent search won't tell you how many patents Google owns because many patents bought on the secondary market aren't formally reassigned to their new owner in the patent database until they are asserted in court. Google itself knows which patents it owns. If it wanted to do so, it could make a list available to the public in no time. If it doesn't do so in the near term, it apparently isn't committed to transparency in patent ownership.

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