Google is getting some attention today for taking an official pledge that it won't initiate patent lawsuits over open source software
on certain patents:
At Google we believe that open systems win. Open-source software has been at the root of many innovations in cloud computing, the mobile web, and the Internet generally. And while open platforms have faced growing patent attacks, requiring companies to defensively acquire ever more patents, we remain committed to an open Internet—one that protects real innovation and continues to deliver great products and services.
Today, we’re taking another step towards that goal by announcing the Open Patent Non-Assertion (OPN) Pledge: we pledge not to sue any user, distributor or developer of open-source software on specified patents, unless first attacked.
Initially, this pledge only covers 10 patents, but they claim they'll be adding more.
While this pledge is better than nothing, it feels like really
weak sauce from a company that could and should go much further. For nearly Google's entire history, it simply did not
act as a patent aggressor at all
. It grew its own portfolio, and in some cases I believe it would use patents in countersuits
against companies that sued it, but as far as I can remember, it was never an initial plaintiff in a patent lawsuit (feel free to point out an example case where that's not true). As far as I can tell, the first time Google acted as a patent aggressor was last summer
, when its Motorola Mobility subsidiary went after Apple.
How much stronger and more powerful a statement would it have been for Google to not limit this patent anti-aggression pledge to just ten patents and just open source projects? The company easily could have come out and said: we won't sue over patents unless sued first. It would have been a clear and definitive statement that actually took a stand on a broken patent system -- and it would have been almost entirely consistent with the company's history. The fact that the company chose not
to do this actually suggests that they're even more likely
to be patent aggressors. This is unfortunate. It is not uncommon for larger companies to switch to a patent litigation strategy as they get bigger and as smaller upstarts start disrupting their markets, but Google had, in the past, indicated that it wouldn't follow that path. This pledge actually suggests an evolution in their thinking... and not in a good way.
As we've seen, historically, it's when companies start having trouble
innovating and competing that they switch to litigating over patents. One hopes that this is not an indication that Google has reached that stage.