With Microsoft making an effective defense of its mobile industry patent protection strategy last week, Google shot back with an argument of its own: Microsoft is taking the legal route in the mobile industry, Google says, because its mobile platform, Windows Phone, is failing.

"When [Microsoft's] 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," Google patent counsel Tim Porter told The San Francisco Chronicle. "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."

That's a cute argument. But it doesn't explain why Apple is also busy suing Google's Android OS licensees. Apple, after all, makes the best-selling smartphone, the iPhone. Porter never mentions the words "Apple" or "iPhone" in this interview, and he never really addresses the central issue—that Google has stolen wholesale from the mobile industry in creating Android and then provides the resulting OS to partners for free.

"You can look back and see that innovation happens without patents," he says, not mentioning whether the reverse is possible. "It's also true that since there weren't patents ... at the development of the software industry ... there wasn't software patent litigation. The concern is that the more people get distracted with litigation, the less they'll be inventing."

Any thinking person should take exception to this. The broad concern is that Google has stolen intellectual property that was created, and is owned, by others. Google's concern is that over 50 percent of the Android-based products that ship today include a Microsoft licensing fee. And while it's true that Microsoft's mobile technology patents should be tested—all patents should be equally tested—it's equally true that Google should pay for the right to use others' technologies.

Obviously.