Google had opportunity to join group that won Nortel's 6000 patents

Late last week, the consortium that won the auction for Nortel's patents (otherwise known as Rockstar) filed suit against a number of companies for patent infringement, including Google.

You might remember a few years ago, back in 2011 to be specific, that a number of tech companies joined forces to purchase more than 6,000 patents from communications giant Nortel. When the dust cleared, the winning bid came from a group of companies that included Apple, Microsoft, RIM and Sony. On the losing end of the battle was Google, which stopped its bidding at $4.4 billion, just a tad under the ultimately winning $4.5 billion amount.

Late last week, the consortium that won the auction for Nortel's patents (otherwise known as Rockstar) filed suit against a number of companies for patent infringement, including Google, Samsung, HTC and Huawei.

As one would expect, the lawsuit has drawn a lot of criticism from folks claiming that Rockstar is no better than your everyday patent troll. This sentiment is a bit misguided, however. Whereas patent trolls operate by targeting smaller outfits that often lack the resources to fight back, the same can't be said for the targets involved in Rockstar's suit.

Google, in particular, has no valid reason to cry foul over the lawsuits.

For starters, they could have just as easily bid for the patents. Indeed, the $4.5 billion strike price is a lot lower than the $12.5 billion Google eventually shelled out for Motorola.

Second, and more importantly, if we look back a few years, we see that Google was actually invited to join the group that ultimately made the winning bid for Nortel's patents.

In the wake of Google losing its bid for Nortel's patents, Google Chief Legal Officer David Drummond penned a blogpost articulating that Apple and co. banded together to stifle innovation.

They’re doing this by banding together to acquire Novell’s old patents (the “CPTN” group including Microsoft and Apple) and Nortel’s old patents (the “Rockstar” group including Microsoft and Apple), to make sure Google didn’t get them; seeking $15 licensing fees for every Android device; attempting to make it more expensive for phone manufacturers to license Android (which we provide free of charge) than Windows Mobile; and even suing Barnes & Noble, HTC, Motorola, and Samsung. Patents were meant to encourage innovation, but lately they are being used as a weapon to stop it.

Funny thing is, it turns out that Google was actually asked to join the Rockstar group.

Microsoft General Counsel tweeted the following back in August of 2011.

Google says we bought Novell patents to keep them from Google. Really? We asked them to bid jointly with us. They said no.

— Brad Smith (@BradSmi) August 3, 2011

Also worth pointing out is that Microsoft Communications head Frank Shaw attached a screenshot to a tweet reflecting Google General Counsel Kent Walker's refusal to Microsoft's offer.

That email reads:

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 say what you will about Rockstar's lawsuits, but it's hard to feel terribly bad for Google given that this could have easily been avoidable.

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