Microsoft denies Google's claims, Google fires back

After Google accused Microsoft of buying patents to keep them from Google, Microsoft says "it's on"

The passive-aggressive Google/Microsoft squareoff is taking me back to scenes from my parents’ divorce, when they both told me really inappropriate things about each other in an attempt to win my support. 

Yesterday, Google SVP and Chief Legal Officer David Drummond published a pointed blog post in which he unflinchingly accused Microsoft and Apple of teaming up with the express purpose of buying up patents and using them against Android.  That blog post was followed by tweets from Microsoft execs Brad Smith and Frank Shaw countering that they had offered to include Google in the joint bid on the patents, and Google said no.  Now, Drummond has updated yesterday’s post to explain that it wouldn’t make sense for Google to go in on a bid with Microsoft for patents that could hurt Google, since Google wouldn’t be able to use them in its defense because Microsoft would own them too.

To recap, Drummond blogged yesterday that Microsoft and Apple had teamed up with other Google competitors, like RIM, to buy up Novell’s and Nortel’s patent portfolios purely to keep Google from getting them.  If Google had gotten a hold of them, it would’ve made it harder for competitors to sue them for patent infringements. 

In Drummond’s post, he described a devious plot hatched by Microsoft and Apple—among others—to go in together on the patent purchases (first Novell’s, in which the DOJ intervened since it smacked of anti-competitiveness, and then Nortel’s).  The companies, including Apple, Microsoft, RIM, Ericsson, EMC, and Sony, pooled their resources to buy Nortel’s portfolio for $4.5 billion (BILLION), five times that of Google’s earlier stalking horse bid of $900 million.  And Google was the odd man out…

In the case of the Novell patents, the consortium of bidders included Microsoft, Apple, Oracle, and EMC.

But then Microsoft General Counsel Brad Smith tweeted a curious response, claiming that Microsoft had actually invited Google to join them in the joint bid on Novell’s patents.  That was followed by a tweet from Microsoft Head of Communications Frank Shaw: “Free advice for David Drummond – next time check with Kent Walker before you blog. : )”  Along with a super passive-aggressive smiley emoticon, the tweet included a picture of an email sent by Kent Walker, Google’s General Counsel, evidently telling Microsoft thanks, but no thanks:

“Brad—Sorry for the delay in getting back to you—I came down with a 24-hour bug on the way back from San Antonio.  After talking with people here, it sounds as though for various reasons a joint bid wouldn’t be advisable for us on this one.  But I appreciate your flagging it, and we’re open to discussing other similar opportunities in the future.  I hope the rest of your travels go well, and I look forward to seeing you again soon. –Kent”

So what can we gain from this email?  We know that 1) Kent has impeccable grammar—a lost art, if I do say so myself, and 2) Yup, it sounds like Google could’ve gone in on a bid with Microsoft and Apple for Novell’s patents but gracefully declined.

But Drummond parried Shaw’s thrust with a “gotcha!” of his own:

“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.”

Well-played, Sir.