Google: We developed Android not knowing Sun's patents

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.
Written by Rachel King, Contributor

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.


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