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Patent Shill Attacks Google for Complaining about Patent Predation

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?

Cleland concludes:

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.

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  1. 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 PatentsIP Rights as Monopolistic Grants to Overcome the Public Goods Problem. []
{ 6 comments… add one }
  • Lawrence D’Oliveiro August 31, 2011, 5:46 am

    The fundamental problem is that “intellectual property” is incompatible with property rights. If I buy something, do I own it? Only if it’s not encumbered with someone else’s “intellectual property”; then what I thought was my property is in fact not so, it’s not something I can do with as I would any normal piece of my own property—it cannot be really mine.

  • Dale B. Halling September 1, 2011, 9:47 pm


    Your problem is that you do not understand the basis of property rights. Property rights are the recognition of the act of creation and patent recognize the fact that the inventor created the invention. Copiers are just free loaders at best, actually thieves.

  • Anthony John September 8, 2011, 1:55 am

    Dale Halling,

    You’re wrong.

    Patents are a limited monopoly to encourage innovation while allowing the use and extension of the patented invention by others. This monopoly is intend to provide some financial reward and incentive while allowing and supporting competition and progress – not to act as a bar on competition or progress. Licensing fees for patents are intended to be fair and reasonable. The standards for deciding what is patentable have eroded a great way from the bar of novel, unique, and non-obvious – something that is obvious from the recent decisions in Bilski, KSR, et al. Many issued and presumed valid patents are nothing more than someone else’s idea with the idea “on a computer” appended.

    Further, patents are awarded as first to patent, not first to create or invent. Legitimate inventors have been denied the ability to patent their invention because someone else thought up a vague and utterly unimplementable idea of something that might be possible in the future.

    Face it, the patent system IS broken. NPEs who have never marketed a product and done no good for society are parasites. They purchase patents (valid or bogus) for the express purpose of litigating as large a settlement as possible out of the hard work of other companies who actually brought a product to fruition and gave to the world in doing so.

    Other companies that withhold patent licenses or charge unreasonable and extortionate fees to license are simply using the patent system to prevent competition. Remember, free markets are based on the idea that the market decides. Companies are supposed to compete based on price, features, and quality, not who has a patent on what idea.

    Patents are presumed valid from the day of issuance, the only way to prove a patent is invalid – either because someone else already invented the claimed invention (prior art) or because the invention itself is obvious or non-novel is through an expensive process of litigation, and businesses will always make the decision that best serves the business. This often means paying licensing fees and settling out of court regardless of the patent’s validity. This doesn’t mean the patent is valid, it’s extortion and choosing the lesser of two evils. It’s simply cheaper to pay the bully off than to try and fight him in court.

    So, man up, give up the intellectual dishonesty you’re exhibiting and admit – as even Microsoft has done – that the patent system is broken and needs to urgently be redressed in a meaningful way.

    • Anthony John September 8, 2011, 5:00 pm

      Sorry Stephan, I directed that comment at Dale B Halling. I agree 100% with you, I was pointing out the “what patents are supposed to be” not “what patents have become”. Since Halling believes they have something to do with creation and innovation still.

      Opened with your name by mistake (somehow copied the opening from his post). Apologies again.

      Everything I said is true, but notice the word “Intended” – as they say, the road to hell is paved with good intentions.

  • Anthony John September 9, 2011, 12:22 am

    No apology necessary. Was my bad entirely.

To the extent possible under law, Stephan Kinsella has waived all copyright and related or neighboring rights to C4SIF. This work is published from: United States. In the event the CC0 license is unenforceable a  Creative Commons License Creative Commons Attribution 3.0 License is hereby granted.