However, the good news is that as a result of its failure to win the Nortel auction, Google effectively has $4 billion to play with. Now, I know that this is not “extra” money that has suddenly been discovered down the back of the corporate sofa, but it is nonetheless a sum that can be factored into Google's strategy. After all, it was apparently willing to spend up to that amount in order to defend itself from patent attacks; since it still needs some kind of defence, it is only logical to use the money it would have spent then on other approaches.
The obvious solution is to devote that money to abolishing software patents completely. That would not only take the pressure off Android manufacturers, who would be much more likely to resist demands for licensing payments, but also ensure that Google wasn't troubled with patent issues in the future for any services or products it might launch.
Google is well placed to lead such a campaign: it has been vocal about the worst excesses of software patents for some time, and it has not used them to attack competitors (unlike most other companies). And the more offers-they-can't-refuse that Microsoft makes to Android manufacturers, the more companies there are likely to be that are willing to join in such a campaign.
Since I've written before on The H Open about the deep and irremediable problems with software patents, I won't repeat those arguments here. Instead, I'd like to concentrate on the kinds of things Google could do to bring about their abolition.
One thing that would be hugely useful would be to commission academics to study this area. Too often discussions about software patents are full of sound and fury, signifying nothing, because there is so little objective, peer-reviewed research. What is needed is dozens of papers exploring the legal, economic, business, social and technical angles, and in various jurisdictions around the world. This would cost very little in terms of grants, but would help change the debate by confirming existing research that indicates software patents brake rather than promote innovation and represent a net cost for the computer industry.
Google could also usefully support existing global groups and local efforts to fight or remove software patents, both in the US and elsewhere, and help set up such organisations where they currently do not exist. There is already pressure to reform the patent system, particularly from organisations representing smaller companies that can never compete with the huge legal teams required for expensive court proceedings, and who by definition also lack the means to make their voices heard. They would doubtless welcome moral and financial support from a global company like Google.
Finally, there is the need for basic but massive lobbying. Like software patents themselves, this is something that Google has not really stooped to in the past, but it has belatedly recognised that lobbying forms an important part of the US political system (and not only there – the EU is nearly as bad), and that in the light of imminent FTC anti-trust investigations it must roll up its sleeves and join in. Having done so, it could easily extend its lobbying efforts to include the abolition of software patents.
As an added benefit, taking this kind of action would go a long way to re-establishing Google's credentials as a non-evil company within the developer community. That's an important factor for a company that both prides itself on the calibre of its engineers and depends on a constant influx of bright, inventive people to power its (patent-free) future.
There is little doubt that the current wave of patent attacks represents the greatest threat so far to Android's ascendancy. Unless Google does something dramatic, there will be a vicious circle of growing numbers of Android licensees making the alleged infringements look more plausible, and hence increasing the pressure on others to take out yet more licences sooner rather than later.
This abuse of the patent system to threaten companies who are building on Android to create hundreds of exciting and innovative products, rather than the much more powerful and combative Google that owns it, provides the perfect opportunity for forward-looking software companies to take a stand against the system. The sooner Google makes that possible through high-profile backing and serious financial support, the better it will be for Google, the Android ecosystem and the open source world, which more than most is threatened by these government-backed monopolies on basic software techniques.