Oracle vs. Google

The Oracle vs. Google trial part one has finally closed, and the presiding Judge William Alsup has drafted his instructions to the jury.  The first part of the trial has provided numerous new bits of information, as well as several large solid nuggets of the internal views of senior management of both companies on competitors, technology, and the industry.  This is important because the public rarely get to see the true opinions of senior management in candid form if that is not that particular individual’s style (Steve Jobs and Steve Wozniak are credible exceptions).

 

The first nugget of knowledge is a link to a piece of evidence that Oracle presented in trial.  Google’s approach to copyright and licenses is extremely interesting considering how they distribute Android as an Open Source project under the BSD license.  Sun’s former CEO talked about Google’s views of different licenses in an email discussion with a colleague.  Essentially Google hates the GPL license due to it’s copyleft policies, they like the Apache license since it doesn’t involve the copyleft protections, and LOVE the BSD version where everything distributed under the license allows any use by anyone anywhere.  Oracle distributes Java under the GPL license where any content produced and marketed with GPL also belongs back to the licenser.  This knowledge combined with Google’s refusal to take the GPL license from Oracle shows Google’s true attitude towards the open source community.  Google has proclaimed Android’s “openness” for years, but has continually frustrated open source advocated by not taking the appropriate licenses for content.  Google in a recent court filing has said that the software running Google’s latest flagship Android handset the Galaxy Nexus built by Samsung, is proprietary.  Google in the filing said it chooses to release certain things to the open source community, but it doesn’t release all.  Since Google has been using Java API’s in their codebase and across their platform, they would be violating the GPL license that they are required to take from Oracle.  Any proprietary code would have to be shared back to Oracle, and Oracle could release it as open source even if it chose to do so.  This dichotomy of statements and purposes should make the third part of the trial, the damages and infringement part, extremely interesting.  Part of the penalties levied upon Google could be Google being required to give up the Android code base to Oracle.  This is further evidenced in an email from Google’s Android creators.  The email discusses why Oracle chose the GPL license, and what it would mean for Google if they were forced to take a license.

 

Another development in the case is that a previously dismissed patent from the trial was upheld by US Patent Office.  Oracle Patent ‘702 which patents how files are packaged and compiled would effect every single Android application ever packaged.  That single patent would force the makers of Android applications to give a royalty check to Oracle.  There was a single unconfirmed report around December that Oracle was contacting Android application makers as well as OEM’s, but this was never substantiated.  With the US Patent Office upholding the patent after a review, Oracle now has a tested patent that has withstood litigation with which to force Android developers and OEM’s to give Oracle royalties like OEM’s must do with Microsoft.  While Google may distribute Android for “free”, the opportunity cost of Android is rising as more patent holders enforce licensing fees.

 

Finally, the originator of the Lindholm emails, Tim Lindholm took the stand in a particularly lackluster performance.  Instead of actually answering any questions, Tim Lindholm instead evaded every question thrown his way.  Considering the content of the emails over a 5 year span, the question of whether Lindholm ever worked with the Android team shouldn’t ever be in doubt.  Ditto for whether he knew at the time if Google knew that they needed to take a license for Java.  On the stand he continued to use the phrase, “I can’t recall” or “I don’t know” on issues that should be easy to clarify.  If he had written 2+2=4 in an email, Lindholm would have responded on the stand with an answer close to “Possibly at the time, but I don’t remember ever thinking that.”  When asked if he meant Oracle as the company they needed to take a license from, he provided the expected vague “I don’t know”,  when asked who the they needed a license from the answer was “anyone”.  I suppose that Lindholm’s performance on the stand could be considered a testament to Google’s lawyers.

 

Google’s defense throughout the trial was that they didn’t need a license in the first place, and if they did, then Sun’s ex-CEO blog statement in support of Android should be sufficient coverage of Google’s use of Java.  Oracle in their opening presentation showed that even after the supposed statement of Sun’s ex-CEO that Google knew that they needed a license from Oracle.  There is so much internal Google correspondence about the need for a license, their perpetual inability to do so fully supports the willful and reckless damage claims.  This is important for when the third phase rolls around since Judge Alsup is given a much broader hand for trying to give remedy in the situation.  The purpose in law is to give the aggrieved party redress so that they are compensated.  Willful infringement allows that redress to be tripled in penalties, AND could allow the Judge to stipulate that as Oracle use the GPL license, then Google must conform to GPL licensing statutes.  Judge Alsop could also order the Android codebase to be administered by Oracle or that until Google conforms to the GPL license, no Android device may be sold.  If Google continues to sell in the interim, penalty costs escalate at a logarithmic level.

-Thanks to fosspatents.com for legal analysis

Android, Apple, Oracle, and Samsung.

For Google and Oracle, the date has been set in which the drama over the source code engine within Android where it will officially go to trial…on April 16, 2012.  The judge presiding over the case, William Alsup, has ordered both parties to attend one last settlement negotiation, with the sole purpose to try and avoid a potentially lengthy and disruptive trial.  This is the critical juncture of the case, as both parties have been able to judge the relative strength of both sides before going to try.  This is the equivalent of both armies lining up on either side of battle, providing the last final look at how the troops are emplaced, and the able to realistically judge the final outcome.  At this point, it has to be apparent to all parties that Oracle is holding a rather sizable advantage if the case goes to trial.

As Oracle has had to narrow it’s claims within the court, the case has moved from a trial about pure software patents to a mixed bag of patents and copyrights.  Google’s has a very high hurdle to clear to explain to a jury how a piece of code called a header stripper manages to automatically remove all copyrighted material out of a software code.  All Oracle will have to do is pull a sheet of Android source code and the matching piece out of the Java software development kit, and show the minimal amount of code that was changed for Android.

Until mid-April, that’s the update that can be given in the Oracle/Google case, unless Google decides to settle out of court with Oracle…

Meanwhile, Apple and Samsung continue to battle around the globe in various locales about Samsung’s potentially copyright infringing design.  Litigation between Samsung and Apple has reached into over 100 different cross-litigation lawsuits.  Apple has sued on the basis of a community design patent on how their products have looked as well as they look now.  This has been considered the weakest form of lawsuit, as the Samsung only has to narrowly change their design to work to invalidate the patent.  Samsung has recently run into trouble about how closely they have been imitating Apple.

Apple’s strategy until the death of Steve Jobs was to try to litigate Android to death.  Apple has yet to sue Google, instead preferring to sue the device manufactures on a case by case basis and eliminate the companies who are profiting from the sale of Android devices.  Due to the market having hit a critical mass in regards to Android saturation, Tim Cook Apple’s new CEO might instead choose to go the licensing route for some of Apple’s most powerful patents.  Some of Apple’s most powerful software patents cover some of the most common gestures now made familiar across the entire tablet and smartphone interfaces.  Such concepts that were introduced with the Apple’s first smartphone such as the slide to unlock and visual voicemail are just now starting to show up within their patent litigation portfolio.  The very first use of such powerful patents is within Germany in the Mannheim district court.  This court is what is referred to as a “rocket docket” a place where suits that get filed get litigated extremely quickly.  The quick litigation in this district leads to many reversals on appeal, but the weight of having a ruling in a companies favor lends weight to their cases across the world.  Apple has managed to score quite a few victories across the world while using their weaker version of their patent portfolio, notably getting the Galaxy Tab banned in Australia.  In the United States, Apple has yet to gain a significant decision on it’s very first patent lawsuits against Samsung and others.

The scramble for strategic patents has created a vicious bidding war for old software patents that might be of use in future patent lawsuits.  Recently, Novell went bankrupt and their entire catalog of patents for mobile space went up for sale.  Four different groups coalesced into bidding partners: Apple, Google, Microsoft/Consortium, and PatentTrolls (companies whose sole income is derived from enforcing possible copyright/patent violations and collecting royalties).  After the bidding sailed northwards of over two BILLION dollars, Apple and the Microsoft Consortium merged.  Apple was going to retain sole ownership of the patents if they won, while Microsoft and partners were allowed to retain a perpetual license to them.  In short, Google and it’s Android partners just got left out in the legal wasteland.

These patents were important as the type of lawsuits filed between Apple and Android makers were not the standard intellectual property lawsuits.  The lawsuits filed by Samsung in particular are over the use of FRAND encumbered patents.  FRAND patents are patents that were essentially given up to the world standards body so that cell phones and other mobile devices could all speak the same language.  FRAND stand for Fair, Reasonable And Non-Discriminatory licensing.  In essence, a company that invented a lightbulb that contributes the patent on how the filament is heated so that that an entire industry could standardize can NOT refuse a rival a fair license to use the technology.  Samsung’s patents that are being used are all FRAND encumbered as they were used to build the 3G and 4G technology.  These patents range from how a cell phone interprets the location it’s at from radio waves to how a call is connected by said handset.

Samsung is simply playing with fire by suing Apple over FRAND encumbered patents…as evidenced by the recent ITC and European Trade Commission announcing inquiries that aim to determine if Samsung and partners who are using this defense have violated EU and international law by breaking their FRAND commitments after Apple refused to license proprietary patents.

Google vs. Oracle

Apple within the last few years has come to dominate the smartphone industry in terms of growth, profit, and the breadth of applications for their products.  After the iPhone launched in 2007, competitors scrambled to catch up to the new user interface design and the philosophy of putting consumers first overall.  RIM has yet to meet this challenge, Microsoft launched a brand new operating system likely two years too late, and Nokia shuttered their software division.  Apple’s biggest challenger in the mobile space is a company who wasn’t even in the mobile space in 2007, a company by the name of Google.  Google had been working on Android for quite some time to launch within the mobile space, but drastically changed their vision for what their OS should be when the iPhone launched in 2007.  Steve Jobs famously said the he felt that Android had stolen key concepts and UI functionality from the iPhone. and Apple has litigated from this viewpoint since.  However, Google apparently stole another company’s intellectual property before Apple.  That company would be Oracle/Sun.  During the 90’s Sun (later Oracle after buyout) created a high level language whose goal was for a program to have been coded once, yet be able to be executed on any platform.  This language name was Java, and it became a ubiquitous language that was easy to program for and used in many different technological applications.  When Google coded Android, they did so in the Java language.  Coding within the Java language doesn’t violate any copyrights that Sun/Oracle held, except that Google also copied various low level libraries to save time instead of coding them from scratch.

Another legal issue besides the outright theft of Sun’s work was that Google routinely gives away their platform Android for free, which means that the are also giving away Sun’s work for free while Sun sells access to such libraries through licensing.  By taking a morally objectionable and possibly illegal shortcut, Google has created a platform(Android) that some companies(Sony, Samsung, HTC) have built their entire mobile strategies upon now has been found to have a foundation made out of sand and clay.  Sun started a civil suit on August 12, 2010 to regain control of their product and the java ecosystem.  Here are some key aspects of the case since both Google and Sun have filed their opening briefs:

•   Oracle’s position is that there should be an injunction against ANY device whose code base is from Android unless Google brings Android into line with the java standards
•   Oracle claims that Google willfully infringed upon their intellectual property, which will allow Oracle to receive triple the damages normally allowed

•   Android is a significant profit generator for Google, yet Oracle receives none of the benefits
•   Android has a network effect of improving Google’s position in it’s natural domain of search, and the advertising revenue that is generated from said field

• Google’s position is that Oracle is misstating any possible damages that Oracle may have sustained IF they so happened to have taken any of Oracle’s intellectual property
•   Google believes that they have an open source license on any Java code that may have been used
•   Finally, Google asserts: “This lawsuit is an attempt to obtain through the courts what the company formerly known as Sun Microsystems […] failed for years to achieve through innovation, negotiation, or even costly corporate acquisitions–a viable path to competing in the mobile computing market. Oracle missed that boat and now wants the benefit of Google’s initiative and hard work, both on its own and with numerous partners.”

 

While Oracle was allowed to collect evidence from Google about possible infringing practices, Oracle discovered perhaps the biggest bombshell of the entire case…..the Lindholm email.  This email is so incredibly damning as it proves that Google at its very highest levels knew that Android depended upon Java and that there was a licensing offer on the table of $100 million.  That last part is so important, as American courts of law view the fact that Google knew that they had to have a license and an offer was made.  Those two things destroy any possible plausible deniability defense that could have been mustered.  There won’t be any subordinates who Google could possibly sacrifice and point to as operating in a rogue manner.  

The only way that this could possibly get worse is if Oracle was also able to prove that Google has a pattern of willful infringement.  To prove this, Oracle has submitted into evidence the accusations that Apple has made with the ITC about Andy Rubin working at Apple prior to his published background at Danger and other companies.  Apple is showing that Andy Rubin worked directly as a low-level engineer for the team that patented real-time API’s an essential part of today’s mobile systems.

 

In essence, Google has been caught showing a pattern of being careless about patents, and the associated legal obligations that stem from them.  Apple would not have made accusations about Android’s chief architect without the pay stubs and internal documents to prove that Andy Rubin not only worked for Apple, but that he based his new product off of ideas that Apple patented a decade beforehand.  Apple is working to show that it could not have been “inspiration” as previously reported by companies that license Android for commercial use, since Andy Rubin worked on the team that created those ideas.  Since the judge and district courts struck down all challenges to those pieces of evidence, Oracle will be able to present these facts to a jury.

 

In summary, 2012 will be a very fateful year for Android as the trial date has been set for early April.

And Here’s Your Summer Recap…

In the vein of summer reality shows, I am going to give a quick down and dirty guide to what happened in the tech sphere:

 

Our summer opened in May with what seemed almost an avalanche of upcoming tablets that pundits proclaimed would eliminate Apple’s year long head start.  The RIM Playbook launched to great fanfare then proceeded to promptly be ignored by the mass public.

Every couple weeks through the summer the “Next Greatest Bestest Android Handset” launches, making everyone forget about the prior entry.  Don’t expect that pattern to change.

LTE handsets launch to great fanfare and fast speeds….as long as their owner has the charging plug handing.  Everyone except Google wait on their 4G handsets until the battery life problems are solved with the next generation of chips.

RIM continued its quest to be the laughing stock of the blogosphere by bowing to investor pressure to separate the CEO jobs by conducting a “inquiry” into the two top jobs performance….whose report will be read and acted upon….the Co-CEO’s.  What a twist!  In a separate matter, due to the slow sales of the Playbook and its under-performing phone business unit, RIM will also have it’s first layoffs in over a decade.  Purely coincidental to RIM’s recent woes, according to it’s executives.  Right.

Microsoft Windows Phone 7 and HP’s WebOS kept fighting for traction in a crowded marketplace.  They are still around, but look to continue to be the realm of niche OS’s in a world of iOS, Android, and a decrepit RIM.  Until RIM finally pushes out it’s QNX OS to it’s phones, expect their phone sales to continue to plummet.  Especially as Android phone manufacturers start pushing great keyboard options down the pipe.  RIM’s competitive and technological advantages are being eliminated and nullified daily as the other OS’s expand their functionality.

Within the desktop space the first ChromeBooks are out to mixed reviews, generally being praised for the concept and faulted for the execution.  Apple introduced its latest iteration of OS X with Lion that brought an interesting mix of iOS features back to the desktop OS and only cost a paltry $29.99.  Not too shabby.

The lawsuits flew fast and furious between all the players within the mobile space, and it was revealed that Microsoft makes roughly $12 per phone in licensing fees.  Apple was sued and sued in return just about every mobile handset maker of the Android platform.  Apple and a consortium managed to grab Nortel’s patents for the couch change sum of $4 billion.  Apple also achieved victories against many of its competitors in overseas markets with import bans being sustained in Germany, EU, and Australia (Samsung is of course appealing).  After many reversals and failure to achieve any kind of patent leverage, Google decided to back up the bank truck and pay a reported roughly $14 billion for Motorola Mobile and its substantial patent portfolio.

The resolution?  Tune in this fall and spring for the stunning conclusions!

 

If you are one of 100 people that own a Playbook AND a BB phone

As This is my next reported from RIM’s official blog page, the Bridge Application is finally available for AT&T customers.  The Playbook came out in late April to tepid reviews with the lack of a native email/calender/contact applications cited as major points of failure.  IF a Playbook owner owned a RIM BB phone, and had a contract with Verizon or Sprint THEN a Playbook owner could use the Bridge Application to allow the Playbook to host the phone’s data.

AT&T owners however have had to wait until now, as AT&T had to ensure that no unauthorized data usage could be taking place….especially since users can connect to the internet through the Bridge App.  I understand that AT&T’s network is a creaky aging collection of towers that desperately need new hamsters to maintain the laughable semblance of a network that is currently running (try and use the iPhone in a major market…say New York), but adding the vanishingly few Playbook owners should not imperil the piss poor network ad hoc mishmash.  RIM should be seething behind closed doors that AT&T took this long to approve an application that should be baked into the OS at the lowest level.

So, if ( A & B ) or for the math majors out there ( A ∩ B ), means the few who have a Playbook AND a RIM BB AT&T can now use a feature that should have been there date and day of release is now available.

Otherwise, disregard and go about your own business.