The latest development in the suit is that the USPTO (US Patent and Trademark Office) has invalidated the majority of one Oracle patent related to the suit. Although the document says it is a "final response," that does not make it a final ruling. In fact Oracle can (and no doubt will) still appeal the decision.
Oracle's suit stems from Java patents and copyrights included in their buyout of Sun Microsystems which was finalized in 2010. The complaint revolves around Android's app framework, which is based on Java.
Although Android apps are written in Java, Android does not run them using a Java VM (Virtual Machine). Instead it uses a VM called Dalvik which is designed specifically for Android (although it has been ported elsewhere) and optimized for mobile devices with slow processors, little RAM, and relatively short battery life.
While licenses for all of Oracle's Java intellectual property can be had for free, there are requirements involved which disqualify Dalvik. There has also been speculation based on Oracle filings in regard to an internal Google document that the real dispute is over Google's decision not to use the mobile version of Java.
Unlike the SE (Standard Edition) version, Java ME is only licensed commercially. By providing a free alternative to use Java on mobile devices, Google has effectively killed any chance Oracle had to license Java ME.
Google's original defense to the lawsuit was that Dalvik is what's known as a clean room implementation. That is, the code was written completely without looking at Sun's implementation of Java. In fact portions of the Dalvik VM come from a previous clean room Java implementation created by the Apache Software Foundation.
However, Google also added significantly to the ASF code. While their additions could also have been clean room code, Oracle says that's impossible given the presence of key Google employees who came from Sun. And, in fact, testimony from one of those employees seems to have confirmed Oracle's assertion.
Because both copyright and patent infringement is alleged by Oracle, Google has two distinct challenges to overcome. On one hand they plan to argue that the works in Oracle's copyright claims are purely functional, rather than creative, and therefore do not qualify for copyright protection in the first place.
On the patent side, they are using a two pronged approach. Before a trial begins they are attempting to invalidate as many patent claims as possible. That's the first place this USPTO decision, and also an earlier invalidation of claims from another patent, comes in. Between the two patents, 27 specific claims have been preliminarily rejected on reexamination.
Just as importantly, the rejections were because of prior art, rather than obviousness. Prior art refers to the claim either being already covered by a patent or already in use at the time of the supposed invention. This increases the chances the preliminary reexamination decisions will be upheld.
It also provides Google an opening to argue against willful infringement during a trial. Their lawyers can refer to the USPTO's initial decisions and argue they didn't believe the patents were valid. In addition, there are two remaining patents Google has requested to be reexamined.
The examination process could still drag out for many more months, and the trial almost certainly will. In the end, if Google loses on any count, and that seems likely at this point, the question will likely come down to whether Google can convince Oracle to accept a single lump sum payment, or whether they will be forced to begin charging for Android because Oracle demands a fee for every device.
Written by: Rich Fiscus @ 29 Dec 2011 1:05
