Joff Wild

The San Francisco Chronicle ran an interview with Google patent counsel Tim Porter over the weekend. In it Porter discusses the oft-expressed Google view that the patent system is broken and also takes some pot shots at Microsoft for going out and doing all the Android-related licensing deals it has done. He also talks about Google’s current strategy to beef up its patent arsenal and to “aggressively stand behind” partners in order “to defend the Android ecosystem”.

Porter admits what everyone already knows – that the Google patent portfolio is currently too small. He says that it is the consequence of Google being a relatively young company. But is that really a good enough excuse? As Florian Mueller recently noted, Google could be seen as a company that is actually founded on a patent - US6285999, “A method for node ranking in a linked database” - which was granted in 2001 and which it has on exclusive licence from Stanford University. “… Google as a company was built on the PageRank patent. The fact of the matter is that they had a software patent before they had a business plan, and there's at least a strong possibility that the patent played a key role in Google's ability to attract funding,” writes Mueller. But even if the patent was not crucial to getting funds what it does tell us is that Google’s founders were not ignorant of patents and their importance (especially as US6285999 actually protects an invention made by Larry Page).

Another reason why relatively young companies may not have the patents they need is that they lack the cash to apply for them. But that is not really a situation Google has found itself in for a decade at least. Before its 2004 IPO Google’s SEC filing revealed it had been making a profit since 2001, while the float on Nasdaq raised over $1 billion. In other words, if Google had wanted to build a patent portfolio it could have done so. But if you look at a chart of the company’s USPTO filings between 2000 and 2010, you can only conclude that until very recently it was actively against developing one. How else do you explain the almost complete lack of activity until recently?

Perhaps the US patent system is broken; it’s possible that some companies are gaming it; maybe there are patents being granted that shouldn’t be. But none of these are really acceptable reasons for walking on the other side of the road and ignoring patents altogether. Given that they played an important part in Google’s establishment ignorance of what they can deliver is not an excuse; neither is not having access to cash. Thus, it is hard to escape the idea that somewhere along the line senior management at Google made the wrong call: one that the company is now having to spend billions of dollars to put right.