In a recent column in Forbes, Google Asserts That Property Rights Are Anti-Competitive (h/t Skip Oliva), patent shill Scott Cleland spins a collossal web of distortions and pro-state-monopoly-privilege propaganda to bash Google for having the temerity to complain about the billions of dollars it’s had to pay to patent predators.
As Cleland writes:
Google recently complained in a blog post called “When patents attack Android” that it is the victim of a vast anti-competitive conspiracy to enforce property-rights against Google’s fast-growing Android mobile operating platform. Google goes on to charge that competitors are wielding “bogus patents” “as a weapon to stop” Google’s innovation. Google specifically is complaining it is anti-competitive that a group of some of its competitors outbid Google to own Nortel’s roughly 6,000 patents.
Prior to the Nortel patent auction, Google made a high-profile “stalking horse” bid of about $900 million for the Nortel patents that it now complains are largely “bogus.” Google also declared after this initial bid: “we hope this portfolio will… create a disincentive for others to sue Google…” If Google was not so patently deceptive in its public relations, Google would have entitled its recent post: “When Google attacks patents.”
Yeah? So what, Cleland? Google would be right to attack patents. Instead, it has to spend literally billions in protection money to buy up patents just so its competitors will be more reluctant to shake the down for violating their “patent rights.”
Behind Google’s feigned indignation is an old legal adage: when the law is not on your side you argue the facts, when the facts are not on your side you argue the law, but when neither the law nor facts are on your side – you pound the table. Take note: Google is loudly pounding the table.
Effectively, Google is implying that vast numbers of existing patents approved by the U.S. Patent and Trademark Office (USPTO) are bogus and thus anti-competitive. Even more bizarrely,
The very purpose of patents is to protect companies from competition–from the horrible, “unbridled competition” of a truly free market.1 So what is bizarre about this?
Google is effectively arguing that the constitutional right of inventors to patent and own inventions via the due process of the USPTO
Due process? What is he talking about? In the PTO we have legal monopoly privileges bestowed–which amount to takings of third parties’ property (since they can no longer use it in certain ways specified in the patent, from the day it issues)–not by a judge, and the proceeding is ex parte: the parties affected (third parties in the public) are not present; only the PTO bureaucrat and the patent supplicant. And once this “property right” (really, a taking of property rights from the public) is issued, it now has the presumption of validity even though those affected by the patent were not part of the proceeding.
somehow turns anti-competitive if and when patent owners choose to exercise their legal rights to defend their property in court against Google infringement. Google has a patently self-serving view of antitrust law.
It has nothing to do with antitrust law. Patents are monopoly grants that are anticompetitive by their nature since they protect the holder from competition! Whether or not antitrust law covers this (and there is basically an exception in antitrust law to the monopolies the state agencies, like the PTO, grant, even if it is a grudging exception). Further, labeling patent rights as “property” is question-begging. In fact this is just pro-monopoly privilege propaganda.
At core, Google is furiously throwing stones at competitors from its glass house.
It would only be stone-throwing if Google were using patents offensively and aggressively against innocent companies to shake them down for money or to stifle competition, as Google’s competitors (and various patent trolls) are doing to it. Cleland then lists several cases where Google had to pay ransom to copyright or patent holders, as if this is an example of how Google violated property rights. Of course this is only true if patent and copyright are property rights–which they are not, any more than the Crown-granted monopoly to be the only seller of playing cards in England was a “property right.” Instead, patent shill Cleland is just trotting cases where Google was robbed by virtue of the false property rights granted by the state to supplicants. So according to Cleland, Google has to suffer paying billions of dollars in protection money or ransom, and then if it complains about it, it’s being hypocritical since it must have violated property rights–otherwise why would it have paid the ransom?
Common sense tells us free markets cannot exist without enforceable property rights, so suing to protect one’s property rights in court is pro-competitive, while serially infringing competitors’ property rights — like Google does — is anti-competitive.
Unless the “property right” at issue is a false one that should not exist–in which case they ought not be enforceable, and when they are, it is the “trespasser” who is really the victim, and the “victim” who is really the crony-corporate aggressor.
- See Intellectual Property Advocates Hate Competition; also Pro-IP Libertarians Upset about FTC Poaching Patent Turf; Ayn Rand’s Anti Dog-Eat-Dog Rule and Intellectual Property; Let’s Bring Back the Good Old Days of English Patents; IP Rights as Monopolistic Grants to Overcome the Public Goods Problem. [↩]