Trial: Eric Schmidt discusses Google-Sun negotiations for Android

Google's executive chairman offers his perspective on the discussions over a partnership for Android between Sun and Google in 2005 and 2006.
Written by Rachel King, Contributor

SAN FRANCISCO -- Google commenced with presenting its case in its intellectual property trial against Oracle at the U.S. District Court on Tuesday morning, starting with calling executive chairman Eric Schmidt as its first witness.

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After Google acquired Android in 2005, Schmidt confirmed to Google counsel Robert Van Nest that Google was speaking to many different hardware and software partners for the mobile operating system, including Sun.

"In 2005, Java had evolved to primarily be used by mobile carriers," Schmidt said, "Sun's strategy was to have mobile devices, which were well suited to Java."

To demonstrate this, Van Nest pointed to an email that Schmidt wrote to Sun co-founder Scott McNealy in 2006:

Scott…I'm in a product review and we are looking at a very interesting partnership proposal with Sun. Basically, Andy Rubin runs our mobile os/search engineering group; he is talking with Alan Brenner, VP Consumer & Mobile Systems Group of Sun.

McNealy responded with what Schmidt described as a "typical Sun response:"

Jonathan and the team are on top of this - I'm worried about how we're going to replace the revenue this is likely going to submarine.

The email concluded with the line, "But we're obviously supportive in helping to fuel the market."

In another email from Sun CEO Jonathan Schwartz to Schmidt in 2006, he wrote:

My team has alerted me that our negotiations to jointly create a Java-Linux platform mobile platform are at an impasse.

I believe this effort is an important project for both of our companies. We're at a critical stage in the industry where we still have a chance to successfully create an open platform that can target multiple consumer devices.

Schmidt explained that this was, "referring to our proposal to combine our activities with their Java licensing model."

As to how involved he actually was in this process, Schmidt said there were people for him and Schwartz conducting negotiations.

When explaining why negotiations for a Sun partnership eventually fell apart, Schmidt said it wasn't really about money -- although Schmidt added that Sun wanted money for Android.

"At the highest level, the core issue had to do with control," Schmidt said.

After negotiations broke off in 2006, Schmidt said that Google went with a clean room implementation and an open source approach.

Google announced its first Android-based handset in 2007 with an open source SDK published online for developers, which included both Android and Java APIs.

To emphasize that Schwartz was aware of this as far back as 2007, Van Nest brought up an email from Schmidt to Schwartz to 2007, referring to the public debut of Android:

Thanks Jonathan…I will review right now; the SDK is supposed to release in "early look" on Monday. Eric.

Schwartz responded on the same day:

A few of your alliance partners have reached out to us to build a "separate but equal" effort -- we would love, having seen this movie a few times before, to have one big tent, rather than a hundred little ones… and we can obviously bring a global Java community to the party.

Schmidt said he understood Schwartz to be speaking here (as well as on an post on Schwartz's blog in November 2007, seen in the screenshot below) to the collection of companies that implement Java.

Along with staying in contact with both Schwartz and McNealy to discuss Android, Schmidt also confirmed that Google and Sun still had a business relationship. Schmidt explained that Google had a toolbar that worked on personal computers.

"As part of Java distribution that Sun did, our toolbar was included in their Java distribution," Schmidt said. "We paid a fee to Sun to distribute that toolbar."

Schmidt asserted it was a good deal for both parties.

Most importantly to Google's case, Schmidt confirmed that in his discussions with Schwartz, questions about Java licensing never came up.

"My understanding is that what we were doing was permissible because of the sum of my experiences and interactions I had," Schmidt concluded, explaining that he was "very comfortable that what we were doing was both legally correct and consistent" with the policies of Sun at the time as well as Google.

During cross-examination, Google counsel David Boies commenced by telling Schmidt that he got the impression that Schmidt had "many conversations" with Schwartz that he knew what Google was doing with Java.

Schmidt affirmed this to some extent, describing a meeting with Schwartz at the Sun Microsystems cafeteria in Menlo Park several years ago.

Boies read back a line from Schmidt's deposition on August 23, 2011, when Schmidt replied it was his opinion at the time that "Sun management was comfortable with what we had done."

In that deposition, Schmidt also noted that he "spoke with Jonathan Schwartz a couple of times in the preceding years," but that no one else was present to their conversations and he couldn't remember where they met -- except once in his office at Sun and a few times over the phone.

Despite the discrepancy, on the stand, Schmidt affirmed that he still stood by that testimony.

Pushing further, Boies pointed towards an article by CNET's Stephen Shankland, published in 2007, that discussed how Sun was concerned that Android would fracture Java.

Schmidt appeared unaware of the article and the points in it, saying, "I have no recollection of that."

Boies asked Schmidt if it was true in 2009 that Google was sufficiently worried that it would be sued to the point where it wanted to buy all of the rights to Java. Schmidt initially affirmed this, but backtracked and asked Boies to be more specific as to what "Google" meant.

Nevertheless, Schmidt didn't entirely back down from his initial answer, saying "I'm always open to trying anything to make progress."

Images via Google


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