Google's Patent counsel Tim Porter during an interview, claims that the only reason Microsoft has been going after Android phone makers is because Microsoft's mobile phone strategy has failed.
Porter also said that the "current system is broken and there are a large number of software patents out there fueling litigation that resulted from a 10- or 15-year period when the issuance of software patents was too lax, and that Microsoft's claim on technology related to Google's Android is just an attempt to get revenue from "the success of other companies' products"."
Porter believes that the entire patent system is flawed. "You can look at the development of the software industry and see a point when (software wasn't being patented) and it was a period of intense innovation. You didn't see Microsoft's first software patent until 1988. By that time it had come out with Word, not to mention DOS. So there's just no question you can look back and see that innovation happens without patents. It's also true that since there weren't patents, there wasn't software patent litigation."
He also points out that intense patent assertions only delay innovation. "The period of intense patent assertions (against things like the steam engine) resulted in decades-long periods of stagnation. Innovation only took off when the patents expired."
In a Q&A, Porter said Microsoft has been marginalized by the success of Android and has sought to use patent claims to catch up:
Unfortunately, the way it works is you don't know what patents cover until courts declare that in litigation. What that means is people have to make decisions about whether to fight or whether to reach agreements.
This is a tactic that Microsoft has used in the past, with Linux, for example. When their products stop succeeding in the marketplace, when they get marginalized, as is happening now with Android, they use the large patent portfolio they've built up to get revenue from the success of other companies' products.
Another Google exec, a senior vice president and chief legal officer, David Drummond, a few day ago, accused Microsoft, Oracle and Apple of waging a "hostile, organized campaign" against Android using bogus patents.
Drummond also accused the companies of using patent litigation to stifle innovation, rather than build new products, and using patents to tamp down competition.