Google: We developed Android not knowing Sun's patents

Google: We developed Android not knowing Sun's patents

Summary: On patent infringement, Google's counsel argues that Android does not use Sun's technology because Google engineers developed the platform not knowing about Sun's patents.

TOPICS: Google

SAN FRANCISCO -- While Google is trying to move for a mistrial for the copyrights segment of its legal battle over Java APIs with Oracle, it's time to move full steam ahead to the next round.

Robert Van Nest of Keker and Van Nest LLP presented the Mountain View, Calif.-based giant's opening statements for phase two, focusing on patent infringement, at the U.S. District Court of Northern California on Tuesday morning.

Google's case in phase two will rest on the following three key points:

  • Google made fundamentally different design choices for Android
  • Google independently developed Android not knowing of Sun patents
  • Android does not use Sun's technology

Van Nest asserted that the two patents in question are "very specific, narrow patents" that focus on details that Google is not using. He added "that's no surprise" because none of the design engineers at Google were aware of U.S. Reissue No. 38,104 patent or U.S. Patent No. 6,061,520 when developing Android.

Recalling some of the arguments about Oracle's motivations in this lawsuit, Van Nest also cited that "Oracle didn't even complain about these" patents until July 2010, after which the Dalvik and Java virtual machines had been on the market for two years.

Through expert witness testimony, Van Nest explained Google's defense strategy, which will rely on explaining the "many, many differences" between the Java virtual machine and the Dalvik virtual machine.

Van Nest also went into professor-mode for the jury, giving a brief yet detailed lecture about code compilers and how Android differs. For example, Android doesn't use Java bytecode but Dalvik executable code.

Reminding the jury of their instructions from the judge, Van Nest noted that Oracle has the burden to prove that Google infringed upon all aspects of the patents in this lawsuit, not just four out of five qualities.

Van Nest tried to better explain this by comparing a soccer ball and a football. If someone wanted to patent a ball for playing sports, one person could patent a soccer ball and say it must be made of leather, stitched together, filled with air, and spherical. However, a football wouldn't violate this patent because while it is made of leather, stitched together, and filled with air -- it is not spherical.

In his own effort of reassurance to the jury, Van Nest commented that phase two will be a lot shorter and all of the evidence should be in this week. He added there won't be any "celebrities" testifying in this round, but rather engineers and developers.

Van Nest also joked the infamous API-like "file cabinet" will not be making an appearance again.

Morrison and Foerster's Michael Jacobs provided Oracle's opening statements for phase two on Monday afternoon, immediately after the partial verdict in the copyrights segment of the case was read. In his argument, Jacobs outlined four faults with Google’s case in this half of the trial -- most especially pointing out that that Google has no fair use defense in this portion of the lawsuit.


Topic: Google

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  • So Ignorance Protects You From Punishment?

    There may be all sorts of reasons for and against a judgment against Google, but surely a defense of "we didn't know" is not going to stand?
    • Yeah, that's a pretty weak argument

    • Amazing

      But even if it would work (and I cannot understand how Google think it'll ever fly) it isn't even true. They researched Java, but chose NOT to research the patents?! Really Google? Really?!

      That's like: "I'm innocent of killing that guy, because when I took the shot I had my eyes closed".
      • stop spreading FUD

        this is a civil case that works differently and Oracle's claims are frivolous anyway.
        The Linux Geek
      • It's a razor thin argument

        One that only people like Linux Geek would fall for... how can a company do research Java and not be aware of their patents? Innocence is no excuse when it comes to obeying the law and Google disobeyed the law.
      • Huh?

        @NonFanboy: "Innocence is no excuse when it comes to obeying the law..."
      • @jeremychappell

        When you people stop making inappropriate analogies? It is nothing like claiming to be innocent of killing someone because of closing your eyes. However, not seeing someone before firing a shot would at least make one innocent of murder.

        I'm sure that Google's lawyers did some research on Java related patents but much of Java had been open sourced, quite a few patents are quite broad reaching, don't stand up in court when challenged, and oracle didn't even delcare infringement on these two patents until two years later so it seems they missed the infringement as well.

        Besides... while the engineers were writing code you can be sure they didn't check with the lawyers to ask permission to write code for every little function.

        So here's your challenge Jeremy: Write a piece of software... any software and see if you can do it without infringing upon somebody's patent. If its really like being innocent of killing a guy I'm sure you'd be willing to accept the same penalty, no complaints right?
    • It can work

      But only if they can prove that Oracle knew the infringement was happening but withheld that information until Android gained enough market share. Part of the responsibility of owning a patent is actively enforcing it. Oracle cannot be blamed for not knowing about the infringement, however they can be blamed if they knew about the infringement and allowed Google to put themselves deeper in debt before notifying them of the infringement.

      All that said, unless Google can produce some of Oracle's internal documents proving they knew of the infringement earlier, their ignorance is not a defense.
      Michael Kelly
      • Confusion on that account

        Confusion on that account may come from the fact that Sun didn't seem to have any intent on pursuing Google and it all started after Oracle acquired Sun.

        Does Oracle "knowledge or infringement includes only the time Oracle owns the patents or also the time it was Sun? This can change a lot on Oracle's intent to pursue.
      • What part about offering to license for $100K is confusing???

        SUN offered a license for $100K .... a fact that is very well documented.

        So the "confusion" is only in your brain. Sun was actively pursuing a licensing agreement when Google decided to screw them over.
      • @lepoete73

        I'm afraid the fact that Oracle's late purchase of the patents with intent to sue for infringement does not make a stronger case for Oracle. It hardly matters that Sun was the holder of the patents before. Because Sun allowed infringement or in their words found their to be no infringement therefor allowed the infringement means that Google effectively received permission to do what Oracle considers infringing. Once that action was allowed by Sun the value of the patents was determined and Oracle cannot just come in after the fact and claim that Google infringed when Sun effectively gave them permission to do so.
    • Ignorance protects your from willful infringement.

      The penalty for [i]willful[/i] infringement of a patent is a lot harsher.
    • For copyright...

      ...I would think yes, since the question at stake might be more whether Google did a "clean room" implementation, without copied code.

      For the question of patent violation, I would think not, since ignorance does not matter there.

      My understanding is that they are being sued for both, so this defense could cover some part of the claims (copyrights), but additional defenses would be needed for patent violation claims.
    • undertand

      Check it out, nobody developing reads patents. Warnings are all around. Not only because it is impossible to understand them let alone find out their real scope, but as this litigation shows, if the other party can prove you knew of the patent, you have to pay a lot more.
      That is one of the reasons this patent system is very very sick.
      It looks that also Oracle's team did not really understand the patents they used in this litigation. Most all already out by re-examination, the remaining claims did not pass unharmed. And all that damage even before infringement has been looked at.
    • Didn't Act

      True, but waiting 2 years does not help the cause.
    • re: ignorance

      The argument was a logical one - not pleading ignorance of the law, but rather stating the logical treatise that since Google was not aware of the patent nor aware of the details of the narrow Sun patent and since Google's technology differed in fundamental ways, there was no intellectual property theft.

      This is actually a compound argument that addresses two of the primary elements of a patent infringement case. If you duplicate (even unknowingly) the technology covered by a patent, then it is an infringement. If you reverse-engineer a patented process or technology and duplicate it while making cosmetic changes to avoid obvious infringement - that is still a violation. However - if there are fundamental differences and you had no prior knowledge of a patent, that provides a reasonable argument against a finding of infringement. By itself, probably not sufficient but it has some merit/weight in the deliberations.

      Disclaimer - I am not a lawyer - just someone who has had some exposure to how patent cases are pursued in the court system.
  • HA

    Gee officer, I didn't know it was illegal to smoke dope in the US Capitol building, therefore, I'm innocent.
    • you know nothing about the clean room!

      Google will prove that it had a very clean room where the developers worked and they were not tainted by patent knowledge!
      On top of that, those patents are not used by google, because their developers created something superior to java.
      The Linux Geek
      • I'm going to upvote you

        Just because that is one of the funniest things I've read recently.
      • So which is it?

        Please settle a dispute for us. My friend here says that you're so stupid that you don't know that there's no such thing as a "clean room" defense against patent infringement.

        I say you're smarter than that, you do know, but you're being a troll.

        Who wins?
        Robert Hahn