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Oct 18, 2011
Microsoft vs. Google underscores the pros and cons of patent wars
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Samsung and Apple aren’t the only adversaries on the tech scene using intellectual property law against one another. That Google and Microsoft are bitter enemies should come as a surprise to no one. Google has often called Microsoft’s patent policies anti-competitive. However, the war between these two tech giants intensified this week with serious accusations that Microsoft hired an anti-Google patent analyst to oversee a study regarding patents.


Microsoft tapped Florian Mueller (who is an analyst, not a lawyer) to oversee a study regarding FRAND. FRAND refers to a standard for intellectual property sharing called fair, reasonable and non-discriminatory. Mueller discusses the study on his blog, stating that FRAND “protects third parties against overcharging and abusive behavior.” While the post in question doesn’t even mention Google, Google are correct in asserting a track record of anti-Google writing on his part.


Still, Mueller has shown no special favoritism to Microsoft. Sometimes he takes pro-Microsoft positions, but other times he does not. Speaking about Microsoft’s decision, Mueller was remarkably bland, stating that, “I like the fact that Microsoft appreciates and respects a diversity of opinions, a fact that has enabled us to work together not only on this FRAND research project but also on a couple of other recent issues facing the industry.” The pro forma dismissal of a potential conflict of interest did little to cool heads at Google.


The Google / Microsoft war shows no signs of cooling and the recently commissioned FRAND study won’t help. Even a common device like a smartphone includes over a quarter million patents. The more patents, the more room for patent litigation. As the Samsun / Apple war shows, often times patent litigation has little to do with legitimate grievances and everything to do with slowing down marketability of a product. Even if a company knows it cannot win a patent law war, it’s cost-benefit analysis might point toward litigation as the most cost-effective route. After making a product profitable, one of the most effective strategies for beating out the competitors is making sure they can’t bring their products to market.


Microsoft fires back that Google is the anticompetitive corporation. Google has not disputed that it did not partner with Apple and Microsoft to buy old Norvell and Nortel patents. Microsoft claims this is because Google planned to do precisely what is described above: Namely, to use patent law as a weapon against competitors. Partnering up with competitors to decrease patent liability, as the CPTN and Rockstar groups have done in the case of Norvell and Nortel, eliminates or radically reduces the ability of companies to use patent courts at home and abroad to attack one another. For their part, Google says that Microsoft uses these combines as a ruse to cut off intellectual property infringement claims at the knees.


The real answer is, as is often the case, probably somewhere towards the more cynical end of the middle. There is a certain calculus involved in this patent war: On the one hand, it’s far easier to go in on IP together, allowing companies to innovate and produce new goods without worrying about the hassle of a patent court war. On the other hand, such patent court wars are a powerful tool wielded by one company against another. Where the line for optimum profitability lies is anyone’s guess. It’s not clear that either Microsoft or Google know for sure.

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