How Oracle might kill Google’s Android and software patents all at once
August 14th, 2010
Daniel Eran Dilger
Another major war is exploding in the tech world, but alliances have shifted in interesting enough ways to ensure that this will be one of the most fascinating events ever to hit the technology world.
At issue is Oracle’s patent lawsuit against Google’s Android. Unless you look closely, this might sound like either a run of the mill patent shakedown or just an infringement case where Google will have to pay lots of money.
It’s far more interesting than that.
Pay attention to the man behind the curtain
Think of Apple’s recent skirmishes with Adobe or HTC: media wonks always like to personify the company as the corporate representation of Steve Jobs, turning every engineering decision or intellectual property issue into simply a flippant or arrogant grudge maintained by the biggest personality in the tech world.
Well we can do the same here, because Oracle’s Larry Ellison isn’t just more eccentric than Jobs (Ellison lives as a fantasy samurai in a medieval Japanese villa; Jobs just wears a turtleneck), he’s also Jobs’ long term friend, neighbor and business associate. Since the 1990s, Jobs has frequently referred to Ellison as his “best friend” and “idol,” while Ellison has been a long term enemy to Apple’s arch-rival Microsoft, acting as one of the few CEOs with the balls to testify against the company at its Monopoly trial.
On the surface, one could make the case that Oracle is stepping in to partner with Apple in striking down the Microsoft-like advances of Google’s broadly licensed Android monoculture. However, Google isn’t actually aligned with Microsoft, and is instead helping Apple kill off Windows Mobile and the Windows/Internet Explorer monopoly, confusing the direction of knee jerks by Windows Enthusiasts following the case.
Not an open and shut case
In addition to being outside the convenient definition of a Microsoft vs non-Microsoft war, Oracle vs Google also fails to fit into the customary pattern of Open vs Closed.
Recall that when Adobe flipped out on Apple for not holding up the release of iPad to wait for the still non-functional mobile version of Flash, it was portrayed by the ignorant media as a clear cut case of the “closed” Apple stifling innovation by not embracing the “open” Flash, even though Adobe’s proprietary Flash isn’t open at all.
All of the clever but dishonest rhetoric filed in support of Flash did manage to blind the tech-liberal fringe into vociferously opposing Apple’s plans to promote web standards in place of a proprietary web plugin however. It appears the same bunch are being deluded into thinking that Google is the open side of this new conflict, and that Oracle is the big, old and closed company they should vilify in their blog comment advocacy.
In reality, Oracle is a major proponent of open software, pushing Linux and taking a stand against the notion of software patents themselves. Yes, that’s right, the company filing the year’s biggest software patent infringement case is also a major critic of the idea of software patents in general. When somebody points a gun at you, you point one back even if you don’t like the idea of guns. You might even shoot first.
Oracle likes Linux so much that it funds Btrfs, a GPL licensed, futuristic and advanced new file system that supports pooling, snapshots, checksums, and other features that sound a lot like Sun’s ZFS, which Oracle now also owns. The difference is that Oracle didn’t mire Btrfs in legal quandary the way Sun did with ZFS before Oracle bought them.
That fact not only highlights that Oracle is just as “open source friendly” as Google, but that it’s also more responsible in developing open source software in such a way that it doesn’t recklessly expose itself to being sued the way Sun did, or the way Google did.
How Google shot itself in the face
Speaking of Sun and Google, the matter at issue with Oracle is that Google took Sun’s Java and modified it to the point where it thought it wouldn’t have to pay Sun to license Java within Android.
Google could have taken the open version of Java released under the GPL and done just this, but it didn’t. Instead, it developed its own code to make a Java clone that wasn’t really Java, and therefore neither bound by Sun’s commercial licensing nor the terms of GPL-Java. The problem is that Oracle is claiming that Google’s Java clone infringes upon Sun intellectual property, which Oracle now owns.
Oracle’s purchase of Sun was likely done in part to get the Java intellectual property that could be used by Oracle to stab Google in the face. And yes, Oracle isn’t just after money, it’s after blood. In its complaint, Oracle does’t just demand monetary infringement damages, it’s seeking to have any code that is found to infringe upon Oracle’s copyrights “impounded and destroyed.”
How Oracle is shooting Google in the face
That’s going to result in a dark cloud over the already dismal climate of the Android software platform. Sure, users are buying Android phones now in the US on Verizon, but that’s largely because there are no other phones for Verizon to sell. There are no popular Symbian CDMA phones, Windows Mobile has fallen into a black hole waiting for Microsoft to resurrect its platform as “Windows Phone 7,” Palm has been taken inside HP where it will likely die under the non-direction of its missing chief executive, and RIM’s BlackBerry is growing long in the tooth. What on earth is Verizon supposed to be selling?
Once the iPhone and other platforms reach Verizon over the next six months, Android’s sales will scale back down domestically, and all the platform will have to recommend itself is a lot of adware, malware, copyright violations and fraudware pushed underhanded developers looking to bilk an audience in a market with no curator. On top of all this, it will also have a top software maker seeking to eviscerate its core development platform, necessitating a significant reworking of what Android even is. Who wants to invest in development for that? Especially if all your work is just going to be pirated by all the Android freetards.
People freak out about the “threat” Apple is exposed to when somebody claims a name it may use (like iTV – anyone else think Apple might instead call it the “iPod TV” instead, duh?), but imagine if Microsoft suddenly claimed that Apple had stolen the entire kernel from Windows to make Mac OS X and that it wanted the company to write a new one going forward. That would be a more significant problem than a name argument. Well that’s exactly what Oracle is demanding here: Google, hand over Android’s brain and start over writing a new one. And good luck with that.
But Google doesn’t ever make mistakes!
The likelihood of Android code infringing upon Oracle’s acquired Sun intellectual property is rather high, given that Google’s current CEO Eric Schmidt led the team that developed Java at Sun before arriving at Google in 2001, and that Google hired up plenty of Sun engineers. How exactly did these people manage to ‘clean room’ Android?
Oh, you might naively say, but wouldn’t a company like Google do all sorts of due diligence to prevent even the appearance of infringement? Seriously? We’re talking about the company that bought On2 and rushed its MPEG-4 aping VP8 into a “new” alternative WebM codec over the course of just a few months, assuring everyone that the ISO patent pool covering every stitch of the state of the art in video compression and delivery wouldn’t’ be an issue at all. The same company that cloned the iPhone without much regard to Apple’s patents, enabling the iPhone maker to immediately launch a lawsuit involving at least 20 patents at Android maker HTC.
Google doesn’t even have any experience in creating software platforms, having only ever launched a series of web apps and services that are supported by its single revenue machine: paid search, an idea that it appropriated from Overture! Recall that, in a “this all happened before” kind of way, Yahoo bought Overture and then used its new aggrieved subsidiary to demand 2.7 million shares of Google to license the rights to paid search. Google is nothing but a series of infringements snowballed together.
Anyone who thinks Google looks before it leaps has forgotten that Google only ever leaps, buying up regular new companies on a schedule rather than with a strategy, and blowing out one failed project after another (Answers, Base, Buzz, Catalogs, Dodgeball, Jaiku, Knol, Lively, Notebook, Orkut, Sidewiki, the Nexus One, Google Video, Wave, ad naseum). Google acts like a white trash family who won the world’s largest lottery, which is why it behaves just like Microsoft. Some companies actually early their revenues in a competitive marketplace, and have for generations of technology, like say, Apple.
The software patent war to end all wars
If Oracle is successful in its bid to “impound and destroy” the heart of Google’s Android, it might result in more than just a massive upheaval of the smartphone industry and a congratulatory high fiving between Jobs and Ellison. It might also result in a concerted effort by Google to join Oracle and other tech giants to decommission the nuclear threat of software patent proliferation in the future.
That would have even a bigger impact on the tech world going forward. Without the squabble over Google’s Dalvik flavor of Java inside Android, there likely wouldn’t ever be enough at stake to devote sufficient political will and financial capital to ending software patents.
Back in 1994, Oracle testified at a United States Patent and Trademark Office hearing on software patents:
“Oracle Corporation opposes the patentability of software. The Company believes that existing copyright law and available trade secret protections, as opposed to patent law, are better suited to protecting computer software developments.
”Patent law provides to inventors an exclusive right to new technology in return for publication of the technology. This is not appropriate for industries such as software development in which innovations occur rapidly, can be made without a substantial capital investment, and tend to be creative combinations of previously-known techniques.
“Even if patent law were appropriate for protection of software, due to the large volume of recently-granted software patents and the rising number of new applications, the current patent process would continue to be troublesome for the software industry. Software patent examinations are hindered by the limited capability of searching prior art, by the turnover rate among examiners in the Patent and Trademark Office, and by the confusion surrounding novelty and innovation in the software arena. The problem is exacerbated by varying international patent laws, which both raise the cost and confuse the issue of patent protection.
”Unfortunately, as a defensive strategy, Oracle has been forced to protect itself by selectively applying for patents which will present the best opportunities for cross-licensing between Oracle and other companies who may allege patent infringement.“
The company went on to outline what the USPTO could do to improve upon software patents even if it did not follow Oracle’s advice in ending software patents entirely. These suggestions included ”vastly improving“ prior art capabilities of PTO records ”to confirm effectively the novelty and non-obviousness of software patents,“ speeding up the patent review process so that the patents are not in wide use or obsolete by the time they are granted, ensuring examiners are skilled in computer science and software programing, and setting standards of novelty and non-obviousness governing new patent applications.
None of those recommendations seem to have been implemented by the USPTO in the 16 years since.
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