Google Wants Oracle Java Patent Suit Dropped. As If

Last Updated Oct 6, 2010 9:55 AM EDT

A couple of months ago, Oracle (ORCL) sued Google (GOOG) for patent infringement over the use of Java in Android. Google has finally shot back, claiming that the suit is invalid. This is a fairly common legal tactic, and the back and forth is proving to be interesting. Ultimately, though, Google is unlikely to wriggle easily out of the bear trap it's now in.

The point of the response was to essentially say that everything Oracle thinks it knows is wrong. For example, Google pointed out that Oracle's complaint stated that one specific patent was issued on February 20, 2000, but that the patent actually seemed to come out in 2001. But that's snippiness. Google raises a baker's dozen defenses, including the following:

  • Google didn't infringe any of the patents.
  • Even if it did, the patents are invalid.
  • Even if the patents are invalid, the claims in the suit are unenforceable.
  • Even if enforceable, anything Google might have done was a non-infringing use.
  • Oracle, through Sun, which it acquired, essentially made much of the technology open for anyone to use.
  • Google has an implied license to the technology.
  • Anyone using Android is licensed to use the technology.
Here's a full copy of Google's answer to the Oracle suit:

Google Answer and Counterclaims v. Oracle (Filed)
More broadly, Google's arguments seem to rest on a few underlying claims:

  1. Sun always withheld key parts of Java technology so it could ensure additional licensing terms and fees.
  2. Oracle used to argue against this practice, but changed its mind when it bought Sun.
  3. The version of Java that Android uses is a so-called clean room version that the licensing is supposed to permit.
  4. The Java virtual engine that Android uses has a significantly different architecture than Oracle's.
I doubt that Google or its lawyers think that the case will be dismissed. What it really did was set the grounds for a defense. There are two issues. One is how much of a "clean room" approach Google actually used in developing its virtual machine to run Java code. A fully independent virtual machine might dodge some of the licensing questions. However, even then Google could still have infringed patents. In a recent interview on The Basement Coders podcast, James Gosling, a former long-time Sun employee called the father of Java, said, "At Sun we'd done an analysis and yeah, there's a bunch of patents violated here." What Oracle wants, says Gosling, is the same sort of deal that Sun had with Microsoft (MSFT):
And I'm sure they were looking at the license fees they were getting from Microsoft. Microsoft .NET just smears over a huge pile of Sun patents. When they did the .NET design, they basically cut and pasted from the Java spec. The way that they did CLR [common language runtime], you know they swizzled the way the instruction set went but the way this thing really operated, they exercised essentially no creativity when coming up with .NET. They've done some things since then that have been kind of good but as part of the various court cases we ended up with this rather odd patent deal with them that involved them paying us fairly tasty amounts of money. And I'm sure that the lawyers looked at the Microsoft numbers and said, yeah I want that from Google
So, the suit continues. Chances that Google gets it dropped without shelling out some significant money? Probably zero. As to who eventually wins, there is no way to tell yet.

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    Erik Sherman is a widely published writer and editor who also does select ghosting and corporate work. The views expressed in this column belong to Sherman and do not represent the views of CBS Interactive. Follow him on Twitter at @ErikSherman or on Facebook.