Google Makes Open Source Patent Pledge

A pledge by Google not to sue open source developers over particular patents appears to be a thinly veiled attempt to divert attention away from what Google is doing with the rest of its rapidly growing patent portfolio, an intellectual property consultant has argued.

Google on Thursday announced a list of patents that it pledged to what it calls its Open Patent Non-Assertion (OPN) promise, saying it will not sue any user, distributor or developer of open source software on these patents – unless first attacked.

MapReduce patents

The pledge covers 10 patents Google says are related to MapReduce, a computing model for processing large data sets for which Google was awarded a patent in 2010. Open source implementations of the model are widely used, including Apache Hadoop. Google has granted the Apache Software Foundation a licence for the principal MapReduce patent, which is also included in the OPN pledge.

“Over time, we intend to expand the set of Google’s patents covered by the pledge to other technologies,” said Google senior patent counsel Duane Valz in a statement.

The pledge is similar to efforts made by the likes of Red Hat and Microsoft, with the difference that those two companies’ promises cover their entire patent portfolio, rather than particular patents.

Other companies, including IBM, Sun Microsystems (now part of Oracle) and Computer Associates also pledged lists of patents, with IBM pledging 500 patents and Sun around 1,600.

Some industry observers criticised the likes of IBM and Sun at the time for the limited number of patents they pledged, compared to the size of their patent portfolios.

Growing patent arsenal

“Those pledges had not changed anything, particularly because they involved relatively limited numbers of patents,” said patent consultant Florian Mueller in a Thursday blog post. “I’m sure that not even one lawsuit has been avoided because of those pledges.”

However, Google’s pledge is far less generous than those earlier moves, Mueller said.

“Not only in absolute numbers but also relative to portfolio size, Google’s pledge is the least generous one ever,” he said. “Google reserves the right to sue open source developers over at least 17,000 patents it owns but hasn’t pledged.”

Mueller argued that it is unlikely to be a coincidence that Google is making the pledge at a time when its patent portfolio is growing rapidly, in the wake for instance of its acquisition of Motorola Mobility, bought precisely for its arsenal of patents related to wireless communications.

“The focus should be on what companies do with their overall patent portfolios, not what they do with a tiny number of patents,” he said.

He noted that in 2011 Google closed a transaction with HTC giving it nine patents which the company then used in a lawsuit against Apple.

“A company that gives nine patents to a single Android OEM to sue only one particular rival could pledge more than ten patents to open source if it wanted to,” Mueller wrote.

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