Google has responded to Oracle’s lawsuit alleging that itinfringed on its Java patents by going on the offensive. Oracle has made an about-face on its supportfor open source licensing, Google maintains in a response filed in the U.S. District Court for theNorthern District of California.
Before Oracle acquired Sun Microsystems, Google notes, it wascritical of Sun’s unwillingness to open-source a virtualmachine test kit as it released the rest of the platform — but now that ithas Sun Microsystems under its roof, it has reversed course.
Google presents other challenges to Oracle’sclaims as well — namely that the patents in question are invalid, and that even if theywere valid, Google did not infringe them.
Google also argues that Oracle hasno standing to bring the suit to court since it isn’t being damaged byAndroid.
‘Clean Room’ Implementation
Oracle filed its lawsuit in August, claiming that Google’s Android OSinfringes Oracle’s Java-related intellectual property, including itsDalvik virtual machine, which features just-in-time compilation.
In its response, Google denies Oracle’s seven claims ofpatent and copyright infringement, arguing that it incorporated a”clean-room implementation” of the Dalvik virtual machine into the Android OS. Google hasasked the court to dismiss Oracle’s lawsuit and to declare the patents in questioninvalid.
Google’s argument is based on its contention that SunMicrosystems pledged to make Java open source — and released the virtualmachine technology under a license that allows developers to create their own “clean room” implementations.
“If those implementations demonstrate compatibility with the Javaspecification, then Sun would provide a license for any of itsintellectual property needed to practice the specification, includingpatent rights and copyrights,” Google notes in its response. “One example of a ‘clean room’implementation of Sun’s Java is Apache Harmony, developed by theApache Software Foundation (ASF).”
The Dalvik virtual machine is based on a subset of Apache Harmony,Google maintains.
Crux of the Matter
“Oracle’s acquisition of Sun earlier this year has caused many people towonder about the state of Java and open source,” Raymond Van Dyke, a technology lawyer in Washington, D.C., told LinuxInsider. “Although Sun acquired patents, they generally did not assert them, focusing on open source.”
Oracle is different, needless to say, with a heavier focus on thebottom line — not to mention a more aggressive attitude towardcompetitors.
The issue at the crux of the case is whether particular Javacode was modified to operate in Android, explained Van Dyke. That would violatethe open source licenses with Oracle and run afoul of thephilosophical principles underlying open source.
However, these issuesare subtle ones — as well as highly technical — and unlikely to bedecided any time soon.
Ultimately, the Supreme Court may weigh in on the issue, said Christopher Collins, anattorney with Vanderpool, Frostick & Nishanian.
“This case should begood legal fodder on many broader issues — most significantly, what isthe proper reach of software patents these days,” Collins toldLinuxInsider.
It is a complex case fought along dual lines, he said — both publicrelations and technology.
Google’s argument that Oracle is attacking open source licensingpolicies it used to support “is a clever marketing gimmick for thissuit. I don’t think it is technically correct, because theaccusations — as I understand them — are that Google’s implementation ofthe Android mobile OS directly infringes the Oracle Java patents. Tothe extent that Oracle’s allegations are correct, the open sourceargument fails.”
Viewed another way, if Google truly developed Android using onlyopen source software, then the infringement issue would be decided byexamining the strength of Oracle’s patents against “clean-room” implementationsor code dedicated to the public that is technically unpatentable, continued Collins.
“I think the open source software wins,” he said, “but that reallypresupposes the answer, so we’ll have to wait to see how the partiesdevelop the facts surrounding the creation of Android versus the scope ofthe Java patents. Unfortunately, much of this is likely to be handledbehind closed doors.”
For Google, he noted, the stakes are very high: “If Oracle could trulyhamstring Android, the license fee that Google would be willing to paywould be astronomical.”