Google's Chief Legal Officer, David Drummond, wrote a blog post on Wednesday casting blame externally for Google's failure under his leadership to develop an IP position, either internally or through acquisitions, in support of its Android business.

Tom Claburn from InformationWeek asked me to comment. The story can be found here. My comments from the article:

Patrick T. Igoe, a patent attorney, founder of Igoe Intellectual Property, LLC, software engineer, and blogger, takes issue with Drummond's argument that Google's competitors are litigating rather innovating.

"Apparently, David Drummond has missed the last five Apple WWDC keynotes and quite a few Apple product announcements," he said in an email. "Maybe he was busy watching Google TV."

Igoe says that Google's core focus has been on advertising and data collection technology and that it has largely followed Apple's lead with Android. He points to Google's weak intellectual property portfolio as proof.

"No one would benefit, not even Apple in the very long run, from Apple having an effective monopoly on premium-user-experience smartphones," he said. "Google, however, will have to come to grips with the fact that its failure to innovate and protect its innovation like Apple did will have costs."

Igoe expects that the price advantage Google has enjoyed will be diminished by licensing costs."That does not mean Android can no longer compete, but it does mean Android and the supporting ecosystem will need to get a lot better to stay competitive as price advantage erodes," he said.

"Google could mitigate this problem in the long run by creating new technologies for Android that Apple would have to license. I think the reaction we are seeing from Google, though, shows a lack of confidence that they can do that."

Drummond made one other comment in his blog post that I must take issue with:

This anti-competitive strategy is also escalating the cost of patents way beyond what they’re really worth. ... Fortunately, the law frowns on the accumulation of dubious patents for anti-competitive means — which means these deals are likely to draw regulatory scrutiny, and this patent bubble will pop. (emphasis added)

First, things are worth what parties are willing to pay in the marketplace. A set of companies was willing to pay $4.5B for the Nortel portfolio. That's what they were worth that day. Was the ability to exclude Google from using those technologies a factor? OF COURSE! The right to exclude others is the fundamental right provided by a patent!

Second, I'd like to know Drummond's basis for calling the Nortel patents "dubious." Nortel was a highly regarded company with real engineers, real products, and real R&D spend. If even Nortel's patents don't meet Drummond's approval, his post is really nothing more than a whining screed against patents in general… at least against the ones Google couldn't get.

The Supreme Court will hear oral arguments today in Microsoft Corporation v. i4i Limited Partnership, et al. The case is an appeal of a March 10, 2010 CAFC decision holding that Microsoft was required to prove its defense of invalidity under 35 U.S.C. § 102(b) by "clear and convincing evidence," even though the prior art on which the invalidity defense rested was not considered by the USPTO prior to the issuance of the asserted patent.  Cert. was granted November 29, 2010.

The question presented is:

Whether the court of appeals erred in holding that Microsoft's invalidity defense must be proved by clear and convincing evidence.

Apple and Intel, as parties with large patent portfolios, but also as frequent targets of NPE patent litigation, argued a middle-of-the-road position in their joint amicus brief:

The U.S. patent system is tilting out of balance. Like many other corporations, Apple and Intel encounter enormous costs defending against poor-quality patents. Non-practicing entities—entities with no business other than acquiring and asserting patents—frequently use the uncertainties of civil litigation as a primary bargaining chip. Yet legitimate innovations must continue to be protected by strong patents. A proper balance between upholding valid patents and invalidating obvious or anticipated patents is essential to the businesses of Apple and Intel and to the functioning of the patent system as a whole.

Specifically, Apple and Intel argue for providing deference to the USPTO when prior art was explicitly considered, but allowing a lower standard for proving a defense of invalidity in litigation when the art was not considered:

When the invalidity challenge is based on prior art that was considered by the Patent Office, there are strong arguments that a challenger of a patent should be required to overcome the presumption of validity by clear and convincing evidence. But several of these arguments conversely weigh in favor of a preponderance of the evidence standard when the prior art was not considered by the Patent Office. A different evidentiary standard thus may well be appropriate for each situation.

The brief on behalf of Apple and Intel was filed February 2, 2011 by Deanne E. Maynard, Seth M. Galanter, and Marc A. Hearron of  Morrison & Foerster LLP.

More to follow once oral arguments have been published.