After mixed copyright win over Google, Oracle looks towards patents

After mixed copyright win over Google, Oracle looks towards patents

Summary: The next phase of the trial will consider whether or not Google violated two patents associated with Java.


SAN FRANCISCO -- Oracle v. Google is moving full speed ahead into phase two of the trial, focusing on two charges of patent infringement associated with Java.

However, after a morning debating motions for evidence and witnesses for phase two as well as a debacle that temporarily placed jury deliberations on hold, only Oracle's lead attorney Michael Jacobs had time to deliver his 45-minute opening statement on Monday.

Earlier on Monday, the jury came to a partial verdict about charges of copyright infringement. Although the results were a mixed bag, the jury ultimately found for Oracle, finding Google guilty of copyright infringement.

However, the jury could not come to a unanimous decision about Google's fair use argument, prompting Google's lead attorney Robert Van Nest to move for an immediate mistrial for the first phase of the case. Arguments for a mistrial will be heard on Tuesday and Thursday this week as the matter needs to be resolved before damages can be determined.

Trying to ease the tension in the courtroom after the confusing verdict, Jacobs quipped, "I think you'll be pleased to know that fair use is not an issue in the patent case."

Essentially, the two patents at question here focus on the improvement of memory and performance in relation to mobile devices.

For example, one term we're bound to hear bounced around by the plaintiff and defense over the next couple of week is "symbolic reference," which Jacobs defined as a reference that identifies data by name other than the numeric memory location of the data, and that is resolved dynamically rather than statically.

The point of making symbolic references the heart of Oracle's case is because Oracle argues that Android relies on symbolic reference resolution to run faster.

In a college lecture-like fashion, Jacobs explained the Java platform components stack to the jury, extending from the Java application source code, down to the Java computer, Java byte code, Java virtual machine, and computing device. He then compared that to Android's platform components, highlighting the identical process for the Java application source code to the Java compiler.

But even more pointedly, Jacobs outlined four faults with Google's case in this half of the trial, positing that Google has no excuses this time around:

  • Patented inventions are not free
  • Google has no fair use defense
  • The truth is in Google's own source code
  • Google needs a license to use patents

Furthermore, it's important to note that Oracle is not only suing Google for patent infringement for use of these patents in-house, but also for induced infringement, which would hold Google liable for infringement by someone else.

In this case, that refers to the developers and mobile OEMs because Google made Android publicly available for these ecosystem partners to download.


Topics: Google, Hardware, Mobile OS, Mobility, Open Source, Oracle, Security, Smartphones, Software Development

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  • Oracle will lose the patent part!

    those patents are not infringed, Google's engineers were smart enough to avoid them.
    The copyright will be won by google as soon as the judge rules the API are not copyrightable. Then the fair use question is moot and Oracle goes home tail between the legs!
    The Linux Geek
    • *sigh* I am starting to wonder about you, LG.

      Your on-going barrage of "knee-jerk" responses is starting to make me wonder whether you are actually being employed by MS to make real Open Source advocates look bad.
      • One way to find out

        Let's see how fast your comment is hidden.
        John L. Ries
    • Yes, nothing has been decided

      all the jury did was say that the API's were used, which of course was the Judges instructions to them. They did nothing and the judge will now nothing has happened yet.
  • Google's Sunny Day

    Well, there was a loss on Question 1A and hung jury on 1B, but as the premise is to be decided by the Judge and I think likely to be decided in Google's favor, let's say it's early to put the chalk mark on Oracle's side of the score board. Question 1 is also where one could infer significant copying. Other verdicts went Google's way, for example, the Jury said Sun said it was okay for Google to do what it did with Android. Going for Oracle, the Jury said that Google did copy under a dozen lines of code. Since there were thousands that could have been copied and tens of thousands lines of code, no wonder Judge Alsup all but asked were the skies blue on Boies' planet when the BSF counsel for Oracle started talking about calculating profits to allocate damages for the infringement of those few lines of code.

    Which, according to the reports I've seen, irritated the Judge because BSF had said they were going to take statutory damages and now that things aren't going so well, they are hoping no one remembers what they said. The Judge remembers.
  • So, I have looked at the patents in question.

    None of them gives me heartburn as to infringement as they are, or should be, normal functional components regarding domain security, memory management, arrays and JIT. How anyone could patent these basic functions is a mystery to me. I mean everyone does these things for the same purposes. Does Oracle allege straight copy of a method or similarity?
    • Yeah.

      I think that's exactly what they're alleging.

      Google took all the Java APIs and one by one, just essentially paraphrased them and gave them some different names, except for one or two they missed and forgot to paraphrase, which then slipped through as character-for-character copies. The result was a recognizable ripoff copy of the whole Java API structure and content, with the kickers of being incompatible with Java (forking the code - embrace and extinguish, anyone?), and promoted as their own "clean room" unique code.

      That's what Oracle's case is, if I understand it. And, frankly, with the emails introduced at trial, I think it's pretty clear that that's just what happened. And the jury apparently buys that argument.

      What the final outcome will be we'll all have to see, but I wouldn't assume that Android is free and clear now or even going to survive commercially, because depending on the final outcome, anyone who uses it in a product may either have to pay royalties to Oracle, or be liable for infringement as well.
      • well...

        I imagine that "the two they missed and forgot to paraphrase", was probably intentional, and likely part of the agreement Google had with Sun to use the code, before Oracle took possession of the patents/copyrights. I still have my doubts Oracle will be benefiting much out of this case. I find it more likely they'll lose more then they gain out of this.

        Really though we can only really guess at what their agreement even entailed. . .and I don't like guessing.
      • unlikely

        Considering the Google attitude to avoid any attribution to any third party, I doubt they had any agreement with Sun. I am more inclined to think that the theory Google expected Sun to be weak and not able to retaliate is true. Going further with that theory, it may happen that Google are behind Sun's troubles in some way (such things happen in industry, right?). Of course, I have no proofs -- neither am I interested in presenting any, as I don't have any interest in this case --- except, if the court decides Google are innocent, this will add +1 to the concept that courts are corrupt. (this is, because I believe bribing is Google's primary selling strategy)
      • Developer?

        I take it you are not a developer?

        Google took a porition of the Java APIs and copied them EXACTLY line by line. That's the point of an API.

        But, an API is only a specification. What's also critical is the implementation of the APIs. The implementation are the instructions that tell the computer how to perform the functionality. And Google did the implementation work, a so called "Clean room implementation."

        A few of the implementation details were copied, but relatively speaking, it's probably less than 0.001% of the entire code base (millions of lines of code).

        Both the API and implementation are important, it's a tough call IMO
      • What dave-1212 said... He's right!

        Every developer knows that APIs are a specification. This is a case devised by lawyers and upper management with just enough knowledge of software development to be dangerous and dollar signs in their eyes.

        APIs have been this way for years. Even Ellison's early efforts on Oracle DB were based on the work of a different person with algorithmic expertise on relational databases. If APIs (which encapsulate algorithms) were copyright-able back then, he might not even have a company today.

        What Oracle was proposing is akin to copyrighting the title of every chapter in a book and then claiming someone ripped you off when they used the same chapter titles, but the content within is different from yours.

        And as far as the 9 lines of "exact code". I'm a little skeptical of that as well. Sometimes there are very few solutions to a particular problem, and because of the way developers are trained, we all tend to break the problems apart in a similar way as we devise solutions. For example.. If you were to get a group of developers together, and asked them each to write an API to swap a couple numbers or sort a list of things, I'd wager a lot of them would come up with nearly identical solutions.

        To say APIs are copyright-able at this point would have dire consequences. The depth of how much and how often this is already going on is VERY deep and reaches FAR beyond this little skirmish. Nearly every app out there would be subject to copyright violation. In fact, I'd be brave enough to say just about all of them would be. Including things in Oracle's flagship products. Makes me wonder if the lawyers examined the depth of such a ruling would reach. Luckily, the judge seems to be a very intelligent guy. I suspect he will rule in such a way that makes the US compatible with the EU ruling (i.e. they are NOT copyright-able)
  • Oracle won something?

    My reading of the results is zero finding of copyright liability except for 9 lines that Oracle admitted had no value and were removed from current code is not an Oracle win... or is something escaping me? Jury found that APIs can be copyrighted because they were instructed to assume that. Jury couldn't decide on fair use of APIs, so the judge will rule on that later.
    • Yeah.. that confused me too..

      In Ms. King's defense, she's not the only journalist who interpreted it that way. Or business for that matter. Oracle tried to spin it as a victory as well.

      I think the confusion was set in by Google requesting a mistrial. I guess the notion that the obvious, less positive sounding move hiding the strategic, winning move downstream got a little lost somewhere.
  • another thing we need to get rid of.

    Sound like Java need to go away as soon as possible.
  • Judge to Boies: "This Borders on the Riddiculous"! haha...

    On the Jury's finding that basically the only point that can be considered a win for Oracle is that "9 lines of TimSort code" for infringement. Which Oracle's own Damage's Expert attributed a value of around the price of a Ham Sandwich! lol...

    So the the only thing the Famed Oracle Attorney could think to ask for was about "Infringing Profits". To which the Judge said:

    ""Oracle: Separate damage calculation.

    Judge: Do you want all their profits?

    Oracle: No, Your Honor.

    Judge: This borders on the ridiculous. Now you are changing your tune (adding to the agreed-upon statutory damages). Based on 9 lines of copying out of 15 million? That would be a big, big stretch.

    Oracle: If we were, as a matter of law, able to seek disgorgement on question 1.

    Google: mistrial briefing tomorrow...

    Judge: Zero finding of liability so far. We will use the same briefing schedule. Brief tomorrow, responses by Thursday.""

    Not sounding too good for Oracle and as for Patents it only gets worse.... not better. Google it seems.... has already coded around on patent and have the witnesses and evidence to prove they're non-infringing on the other!

    Happy Days lie ahead for Google!!! :DDD ....and looks like Oracle will be facing another Shareholder Lawsuit (like that in reference to Defrauding US Department of GSA contracts) for now not being even remotely able to justify their Purchase of Sun!!! haha... this Oracle vs Google nonsense gets funnier every day!!!
    • Frankly, I don't want them to even have a ham sandwich.

      My preference is for Google to be able to sue for frivolous damages but I guess it is too late for that.
  • Not Over Yet

    Expect appeals galore and Oracle certainly to lose on the API issue as the EU has declared (quite sensibly) to be non copyrightable and most likely the Supreme Court will follow suit.

    Java is a security nightmare and the sooner Oracle manage to kill it through their own stupidity then it's one less attack vector we all have to worry about.
    Alan Smithie
  • Wow, the headline is misleading, even by ZDNet standards

    A "partial victory" for Oracle? What, may I ask, did they actually "win"? A previous commenter pointed out that the judge has already stated, "Zero finding of liability so far," and that the damages will be limited to the nine lines of infringing code. That's nine lines out of something like 15 MEELEEYUHN lines of code.

    The real question is whether the judge is going to rule that the SSO of the APIs is copyrightable. Regardless of what he rules, it will be appealed all the way to the SCOTUS, with ping-pong rulings along the way, I'm sure.

    If you really want to know who's winning the case, just ask the people who are in the courtroom. Whose lawyers are laughing and relaxed? (Hint: Google's) Whose lawyers have long faces and are feeling stress? (Hint: Oracle's).

    Unless Oracle just gives up and goes back home, this issue won't be settled for YEARS. If you want to print bold headlines let's actually have something of substance to report.

    • ZDNet needs clicks

      .. that's why the tabloid headline .. you're clearly new here. This is just same old .. same old.

      Welcome to the Ziff Davis Network, sunshine.
      • RE: Welcome to the Ziff Davis Network, sunshine.

        You forgot something!

        The last line should read:

        [i]Welcome to the Ziff Davis Network, sunshine. [u]Part of CBS Interactive, a CBS company.[/u][/i]

        Now, the tabloid headline makes sense.