Google gets serious about software patents

Google bids on Nortel patents: Good, bad, or ugly?

If nothing else, you have to give Google props for being up-front about its strategy. The company announced that it would be trying to snap up Nortel's patent porfolio at a bankruptcy auction. Is this a good thing?

Google is obviously feeling the patent heat with Oracle suing over patents related to Dalvik in Android, and with Microsoft suing its partners over patents related to Android. Not to mention the CPTN threat hanging over its head. The company hasn't exhibited any real interest in pursuing patent suits against competitors, and has argued in favor of "patent reform" with regards to software patents. Further, the company claims that it not only wants to protect itself from patent suits but also "the open source community."

So, this is a good thing, right? Maybe.

First, I'm not a big fan of "patent reform" when it comes to software patents. Patent "reform" usually means "let's stack the deck in favor of us instead of somebody else," rather than "software patents need to go, period." Maybe I'm just a crazy idealist, but I think software enjoys rather enough protection thanks to trademark and copyright protections. It's true that the patent system is horribly broken even if you do think that pure software should be patentable. But if you're going to push for something, Google should be pushing to abolish software patents — not for "reform" that simply puts some garnish on a crap sandwich.

But if reform is the best we can do, making a horrible system merely less bad it's discouraging that Google seems to be throwing in the towel by pursuing the Nortel patents.

Google has one of the largest audiences in the world. Imagine if Google put some of its immense weight behind educating the voting public about the ills of software patents. Google could put serious pressure on congresscritters to enact reform (or repeal) of software patents.

In short, it seems to me that Google has decided that it has to become more serious about the patent arms race.

I may not love that decision, if it means a step back from abolishing software patents, but it's hard to argue against the logic of it.

The next question is: Can the open source community trust Google here? Probably.

About the worst thing you can say about Google with regards to the open source community is that the company doesn't do as much as it could. Google could do much more to cooperate with the community when it comes to buidling Chromium, Chrome OS, Android, etc. Google gets a lot of heat for "forking" the Linux kernel with its changes to Android, though this tends to be exaggerated quite a bit.

One of Google's worst offenses is probably least noticed: It doesn't allow projects licensed under the Affero GPL on Google Code Hosting. The excuse here is that Google doesn't want to help license proliferation. However, the AGPL is the only license that would require Google to contribute any changes to code it uses if it doesn't distribute code in the traditional sense. Do the math.

Overall, though, Google's open source track record is very good. It has a history of supporting open source inside and outside the company. It sponsors hundreds of college students working on assorted FOSS projects every summer with Summer of Code. Aside from its AGPL discrimination, Google Code Hosting is generally regarded as a good thing for FOSS projects.

So I doubt that Google would turn its patent portfolio on the larger open source community. However, without Google being more forthcoming about its intentions with the Nortel patents, it's hard to say how helpful it will be, either.

One thing Google could do is to contribute the patent portfolio to the Open Invention Network (OIN). However, the Nortel portfolio goes beyond the scope of the OIN. There really isn't a body that protects open source at large, just around Linux.

If Google manages to keep the Nortel patents out of the hands of a company that is aggressive about patent suits, or away from a patent troll, then it will be a good thing. But it'd be better if Google were pouring that $900 million into lobbying to get rid of software patents altogether.

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