Nortel Patent Auction: Yes, Six Winners. And One Big Loser: Google

Nortel’s announcement late Thursday that it has sold a portfolio of 6,000 patents to a consortium consisting of Apple (NSDQ: AAPL), EMC, Ericsson (NSDQ: ERIC), Microsoft (NSDQ: MSFT), Research In Motion and Sony (NYSE: SNE) for $4.5 billion has meant that another key party interested in the patents, Google (NSDQ: GOOG), has missed out big time.

Google was an early party interested in the patents, putting in a stalking-horse bid of $900 million back in April. That, of course, turned out to be too low in comparison with what the “Rockstar Bidco” consortium was prepared to pay.

There will be a lot of questions about why it was the Google didn’t pony up more for the patents — after all, it showed early interest; and it was reportedly interested in paying $6 billion to buy Groupon, so it has the cash.

Google has issued a formal response from Kent Walker, SVP and general counsel, who said:

“This outcome is disappointing for anyone who believes that open innovation benefits users and promotes creativity and competition. We will keep working to reduce the current flood of patent litigation that hurts both innovators and consumers.” Given that the Nortel sale still has to get final regulatory approval in the U.S. and Canada, there is also a chance that we might see Google lobbying in it favor around that — although Walker’s comment gives no indication one way or the other in that respect.

For now here are two big areas where Google is feeling legal pain regarding its Android platform, where a portfolio of 6,000 patents could have come in handy defending itself:

The Microsoft suits. There are a number of companies that use Google’s Android in its devices, which Microsoft has been approaching to pay licensing fees. In the last week alone, three new licensees were added: Onkyo Corp, Velocity Micro and General Dynamics Itronix. There are also others, including Motorola (NYSE: MMI), that have yet to pay, and are now getting sued. These patents could have been used to defend those Android licensees and future licensees.

Some claim that relationship is already under threat: “It is interesting that Sony and Ericsson joined forces with other companies than Google though Sony-Ericsson builds Android phones,” Florian Mueller told mocoNews. “Google’s relationships with device makers may not be the best. Google is heavy-handed but doesn’t address the intellectual property problems it exposes its ecosystem to.”

Lodsys: Lodsys, which has been suing Apple app developers for violating its patents, is now extending those to Android developers. While Apple has come to their developers’ defense, Google has yet to make a response, and it is questionable whether these patents could have been used to defend against a patent company (rather than a rival technology company).

The Oracle suit: Another place would have been in terms of defending itself directly in the Android patent suit being brought by Google, over patents that it now owns as a result of its purchase of Sun Microsystems. This week it emerged that Oracle is asking for $2.6 billion in damages over this suit.