Google lawyer: Why the patent system is broken

James Temple

Google stands at the center of the escalating mobile patent wars, as the developer of the Android operating system that triggered scores of lawsuits and countersuits.

Depending on whom you ask, the company is either the high-minded adult in the debate du jour over intellectual property - or a blatant patent thief.

In an interview with The Chronicle, Google's patent counsel, Tim Porter, argues that the system itself is broken.

For too long, the patent office granted protection to broad, vague or unoriginal ideas masquerading as inventions. That inevitably led to the legal dramas now unfolding, he said.

There's certainly no question that the Mountain View online giant's smart-phone software has been hugely successful. By offering a free operating system, it enabled companies like HTC, Motorola and Samsung to deliver devices that could compete with Apple's breakthrough gadgets.

Android now claims 43 percent of the smart-phone operating system market, compared with 28 percent for the iPhone and 18 percent for RIM's BlackBerry, according to a recent Nielsen report.

But companies including Oracle, Apple and Microsoft all claim that Android is built on technology protected by their patents. Oracle sued Google outright. Apple and Microsoft have gone after the companies using the software, demanding injunctions against selling devices or licensing fees.

More recently, the battlefront shifted to patent portfolios, as the major players scrambled to buy up intellectual-property holdings of companies like Novell and Nortel. Google was dramatically outbid on the Nortel portfolio by a group including Apple, Microsoft and RIM.

That deal prompted regulatory scrutiny - and excoriation from Google.

In an unusually heated blog post, the company claimed that its competitors were "banding together" to impose a "tax" on Android with "dubious patents." More broadly, it argued that intellectual property is now being used to squelch rather than promote innovation.

In the interview, Porter explained that the perpetual wrangling is sucking up time and resources that would otherwise go toward pushing this technology forward and developing the next disruptive inventions.

Q: Let's talk about Microsoft. They sued at least one of your Android partners and have pressured others into licensing agreements, arguing that they have patents that cover critical parts of the software. What do you make of that?

A: Unfortunately, the way it works is you don't know what patents cover until courts declare that in litigation. What that means is people have to make decisions about whether to fight or whether to reach agreements.

This is a tactic that Microsoft has used in the past, with Linux, for example. When their products stop succeeding in the marketplace, when they get marginalized, as is happening now with Android, they use the large patent portfolio they've built up to get revenue from the success of other companies' products.

Q: Google has said these lawsuits and tactics are a threat to innovation. Do you think the uptake or development of Android has slowed because of these issues?

A: I don't think we've seen that happen yet. But the concern is that the more people get distracted with litigation, the less they'll be inventing.

You can look at the development of the software industry and see a point when (software wasn't being patented) and it was a period of intense innovation. You didn't see Microsoft's first software patent until 1988. By that time it had come out with Word, not to mention DOS.

So there's just no question you can look back and see that innovation happens without patents. It's also true that since there weren't patents, there wasn't software patent litigation.

Q: The obvious next question is: Do you think software should be patentable?

A: I think the question is whether the current system makes sense. During the period I talked about, software was protected by copyright and other legal protections. There are certainly arguments those are more appropriate.

But I think what many people can agree on is the current system is broken and there are a large number of software patents out there fueling litigation that resulted from a 10- or 15-year period when the issuance of software patents was too lax.

Things that seemed obvious made it through the office until 2007, when the Supreme Court finally said that the patent examiners could use common sense.

Patents were written in a way that was vague and overly broad. (Companies are) trying to claim something that's really an idea (which isn't patentable). There are only so many ways to describe a piston, but software patents are written by lawyers in a language that software engineers don't even understand.

They're being used to hinder innovation or skim revenue off the top of a successful product.

Q: Apple has also sued some of your partners, including HTC and Samsung. Back in September, Google sold a handful of patents to HTC, which it turned around and used to sue Apple. Was that use part of Google's rationale for the sale?

A: We've said in the past that we aggressively stand behind our partners and want to defend the Android ecosystem. I think that transaction was definitely part of that.

Q: So where should the line be drawn? How, in legal terms, do we define what's an innovation worth protection and what's just fodder for patent trolling?

A: Really, the challenge that's facing the courts and patent office and all of us is to put some teeth (in the law) and use common sense, like the Supreme Court said in 2007. The legal system should say you shouldn't patent something that's obvious.

What we have to do is have real standards for what is patentable. Patents are supposed to be a form of property. The property system doesn't work if you don't have clear boundaries.

Also, at the end of the day, damages, injunctions and remedies have to be proportional to the value of the invention. Very often, what is fueling patent-troll lawsuits is the ability to go into court and seek astronomical damages based on what any rational person would consider a minor component of the product.

Q: In my recent interview with Horacio Gutiérrez, Microsoft's patent attorney, he characterized the current tangle of lawsuits as unfortunate, but a normal historic event that follows disruptive technologies. What's your take on that?

A: Microsoft was our age when it got its first software patent. I don't think they experienced this kind of litigation in a period when they were disrupting the established order. So I don't think it's historically inevitable.

The period of intense patent assertions (against things like the steam engine) resulted in decades-long periods of stagnation. Innovation only took off when the patents expired.

So what I think we're hoping to avoid is this intense focus on litigation to the degree that we all stop innovating.

Q: Google has attempted to buy a few patent portfolios, including Nortel's. Can you talk about the goal of these sorts of acquisitions? Has this become a sort of nuclear standoff, where you can only prevent getting blown up when there's mutually assured destruction?

A: It's fair to say that one of the most effective ways to respond to a threatened patent assertion is to be able to assert patents of your own.

Google is a relatively young company, and we have a smaller patent portfolio than many others. So it's certainly true that part of our intent in buying these portfolios is to increase our ability to protect ourselves when people assert patents against us or our partners.