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Oracle seeking an injunction against Android as an “incompatible clone of Java”

Daniel Eran Dilger

Oracle’s comments in its infringement lawsuit against Google’s Android platform has revealed that the company is seeking not just royalties, but a legal order stopping the distribution of Android entirely.
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Oracle and Google are deadlocked in settlement talks ordered by the judge overseeing the case, according to a report by FOSS Patents blogger Florian Mueller.

Mueller analysis of the talks suggests that Google hopes to postpone any settlement with Oracle until its acquisition of Motorola Mobility is finalized, with the intent of filing retaliatory countersuits against Oracle.

However, Mueller separately notes that while Oracle has calculated demands for past damages, including patent damages, copyright damages and a share of Google’s profits as an infringer, it is not detailing future damages in the form of an ongoing royalty, similar to the fees Microsoft has negotiated with Android licensees such as HTC.

Instead, Oracle notes in a filing that it “intends to strenuously pursue injunctive relief to resolve the key issue in this case: whether Google can use Oracle’s intellectual property to create an incompatible clone of Java and thereby undermine Oracle’s and many others’ investments in ‘write once, run anywhere.’ If future royalties are applied, it is well established that they should be based on a separate, post-verdict assessment.”

Mueller explains that this means Oracle views Android as a fragmentation of Java, and that rather than seeking future royalties, it would prefer to see an injunction that would either force Google to create an entirely new platform for Android that does not infringe Java (a massive investment that would render all existing Android software obsolete), or to apparently to recognize Android as Java, involving steep Oracle licensing costs for the platform going forward.

Oracle may not be granted the injunction it is “strenuously pursuing.” In that case, if Google “is found to infringe but Oracle is denied an injunction,” then “Google can continue to infringe but has to pay the amount determined by the court, which might be a per-unit royalty or a percentage of revenues,” Mueller states.

Timing of Google’s Motorola Mobility deal also factors into Apple lawsuit

While Oracle is directly suing Google over the technical foundations of Android’s Java-like runtime, Apple has so far limited its lawsuits to hardware vendors licensing Android, including Samsung and Motorola Mobility.

With Google now in the process of buying Motorola Mobility, Apple’s infringement claims now involve Google itself. However, because that deal is not finalized, Apple has recommended that the case be put on hold until Google’s acquisition is completed.

Currently, Motorola Mobility lacks the legal ability to negotiate its patent rights and obligations without Google’s input as a buyer. However, because the deal is still pending Google is restricted from involving itself in the case because it doesn’t yet own the company. Apple therefore claims that Motorola currently lacks standing to negotiate the rights to its own patents.

Apple’s lawyers have pressed the legal council of Motorola Mobility for more information on its confidential merger agreement with Google, a sensitive subject that Motorola has tried to avoid while deciding how to maneuver in the weeks since Apple filed its motion to stay the case.

Apple’s attorneys have complained that the company “is expending enormous resources litigating toward final judgments that may be invalid if Motorola lacks standing.”

Meanwhile, Motorola Mobility has finally responded to Apple’s motion to stay its infringement case by filing to request “a limited period of time before the entry of any such order [to stay] so that Motorola can attempt to cure the defects in standing.”

However, Muller notes that Motorola Mobility can’t “cure its defects in standing” without a revised agreement with Google, as its existing agreement prevents Motorola from settling pending patent litigation. But such a new agreement would also be a problem, because as Mueller notes, Motorola’s management “must operate the company independently, within the parameters of the merger agreement, until the transaction is closed.”

Google’s deal to buy Motorola Mobility is therefore threatening to hold up Motorola’s ability to “defend” Android from infringement cases by both Oracle and Apple, the opposite of what Google intended its $12.5 billion acquisition to do. Instead, it is delaying settlement opportunities and threatening to make it even more expensive to resolve the issues.

29 comments

1 jmfree { 09.22.11 at 5:11 pm }

I remember your characterization of Google as “a snowball of infringements,” which expressed in four words a truth that very few, if any, could at the time.

I also remember reading over the past three years, as little whiffs of litigation began to arise, hundreds of comments in defense of Google saying “Why can’t those people just compete, and create great software like Google does?” Endless confabulations would ensue about a parallel universe where intellectual property doesn’t exist.

Such irony. Now that the Goog has decided it is going to be very uncharacteristically “grown up” vis a vis patents, it succeeds in demonstrating the consequences of years of willful blindness to commercial realities. It’s like they are showing up to play a little Friday night pick up basketball in sandals and robes.

I have met and admire free software pioneer Richard Stallman. I have been impressed with Google’s occasional open-sourcing (which Stallman would say is NOT the same) of assets they have spent money on. And I am grateful for anyone’s efforts to maintain a level playing field in Internet bandwidth and connectivity (much as we should all admire the futuristic and certainly very civic thinking behind Rural Free Delivery).

But I always come back to the huge gap between public perceptions of the Goog as a) visionaries, b) heroes, and c) the smartest guys in the world and the almost clownish reality of a couple of guys who (like Microsoft riding the rising tide of adoption of the x86 instruction set) rode a wave of massive consumer adoption of the Web, but don’t even know it.

For the sake of the morale of the entire tech community, I just hope there is an Act 2 to this company, one that doesn’t involve behaving like teenagers who managed to break into the neighborhood convenience store.

2 spuy767 { 09.23.11 at 6:06 am }

Considering the memos that pretty much scream, “willful infringement,” I have no idea how the Goog will be able to beat this rap.

3 spuy767 { 09.23.11 at 6:07 am }

@jmfree: LOL at the fact that I referred to Google as “the Goog” before I read your comment. Hivemind up in this thread.

4 jmfree { 09.23.11 at 7:56 am }

spuy767, it’s their stock symbol, so they must want us to call it that.

5 warlock7 { 09.23.11 at 9:44 am }

Microsoft lost to Sun when they altered java to fit their specific needs so that their compiled code would only run on Windows machines. The only real difference in this case is that Google got a successful product to market in the millions that now needs to be supported. So a judge is hard pressed to say “OK, let’s destroy every copy of the infringing product and screw over all those consumers.”. How do you stay in your political position when you piss off millions of people by doing the right and legal thing?

This all seems very much like what the Rumsfeld and Bush did for MS in the anti-trust case when they called off the DOJ. They didn’t want to force a (successful) company to redesign everything they did and probably inconvenience millions of people. That’s not good for their bottom line, from a political point of view.

6 spuy767 { 09.23.11 at 9:53 am }

I was thinking more along the lines of calling William Shatner “The Shat.” It’s not as humorous now. Granted, I’d just rolled out of bed after a long night of binge drinking when I wrote that.

@warlock7: Keeping politics out of it, you have to consider what the effects of essentially scrapping a great deal of the software, that almost every company in the country used, would have on the soft-at-the-time economy.

7 warlock7 { 09.23.11 at 10:13 am }

@spuy767: I don’t think you can leave politics out of it when it involves politicians. Especially when those same politicians are willing to start unjustified wars by stove-piping and manufacturing facts (WMD) while ignoring reality to benefit their own neo-conservative agendas.

Sorry if that seems like a rant…

8 schwabsauce { 09.23.11 at 3:05 pm }

I’m glad to hear that this case is seeming to go in Oracle’s favor, because I think a fiasco involving those millions of phones might just be the thing that convinces politicians to change the patent rules.

This old article is even more provocative with the knowledge that DED is apparently in favor of software patents. (In this comment I used the term “legal minefield” to refer to patent suits.)

http://www.roughlydrafted.com/2010/08/14/how-oracle-might-kill-googles-android-and-software-patents-all-at-once/#comment-31677

9 Maniac { 09.23.11 at 5:36 pm }

@ warlock 7 re: “They didn’t want to force a (successful) company to redesign everything they did and probably inconvenience millions of people. ”

Well, when Google releases a version of Android that uses a legal, 100% compliant version of Java (and pays Oracle for the right just like everyone else) then one simple little Android software update will do it.

Oh. Wait…

10 uthne { 09.24.11 at 12:57 pm }

Sorry for being a “bit” off topic (it seems Androids fate is in Oracles hands anyway); but does anyone else feel there is something wrong with the Android salesfigures?

Earlier this year I read statistics from Nielsen, and at the time Android had a 36% marketshare, while iPhone had 26% (of smartphone market). At the same time Android accounted for 0.97% of all traffic on internet while iPhone had 2.8%. According to my calculations Android was 38.4% “bigger” than iPhone – but internet use was 4 times “bigger” on each iPhone than for every Android.
( 2.80% / ( 0.97% / 1.384 [number of phones] ) = 3,99 )

Then I read that the return-rate on some Andoid handsets could be as high as 30-40% – a figure not just incredible but plain stupid – are these phones actually sold or just returned from the shelves?

Now I read iOS account for 2/3 of all mobile Google search…

Are all these Androids “underachiever phones” or is the sale of Android phones “quite smooth?”

11 gctwnl { 09.24.11 at 6:57 pm }

@uthne: I think market share is ‘new sales’ and ‘internet traffic’ is ‘all sales so far (more or less)’.

12 sunfly { 09.24.11 at 7:57 pm }

@uthne
Several reasons for the discrepancy. Many Android owners are in a save battery mode for much of the day. Many low end Android devices are barely more than feature phones, that count toward the total, but really don’t surf the net.

13 The Mad Hatter { 09.25.11 at 7:25 am }

Oracle and Google are deadlocked in settlement talks ordered by the judge overseeing the case, according to a report by FOSS Patents blogger Florian Mueller.

Dan,

You have to be really careful who you quote. Florian Müller is not a good choice. I’d suggest you read The Provenance of Florian Müller and also The Provenance of Florian Müller – Part 2.

You might notice the difference in spelling of his last name. Müller is the correct spelling. Mueller is an Americanized form.

Wayne

14 spuy767 { 09.25.11 at 11:15 am }

@uthne: I’d wager that a majority of people who have android phones foisted on them by phone store staff really didn’t need a smartphone and don’t ever go on the internet. Another possible discrepancy is that that figure may have been iOS internet usage which includes a further 100 million devices.

15 The Mad Hatter { 09.25.11 at 11:29 am }

@spuy767 I know several people who have Android phones, and they use them the same way I use my IPhone 3GS, which includes using the Internet a lot. So my guess is that the IOS numbers included the IPod Touch as well. I haven’t heard many complaints from them about the phones, and the people in question were looking for Smart Phones.

Wayne

16 The Mad Hatter { 09.25.11 at 11:35 am }

Dan,

You should check out Oracle v. Google – And Oracle responds on the Cockburn Damages Report and the Lindholm email for a more accurate (written by a lawyer) look at damages. My take on the Oracle v. Google case is that Oracle is in deep trouble. This is based on reading the patents in question, which I regard as very weak.

Wayne

17 cadillac88 { 09.25.11 at 12:41 pm }

If a complete injunction is what google has to look forward to one past damages are defined then it is not hard to imagine that Larry P likely dragged the talks down to a stalemate. It would be hard to pay for past damages without prejudicing your forward implications. Therefore, google is in no rush to put this behind themselves. I doubt the talks went anywhere Judge Grewal will just have to make some unpopular decisions to end this – because having google and oracle in your courtroom can’t be easy.

18 warlock7 { 09.26.11 at 9:37 am }

Willful:

One of the most interesting passages in today’s order quotes from an October 2005 email by Google’s Android boss Andy Rubin:

“If Sun doesn’t want to work with us, we have two options: 1) Abandon our work and adopt MSFT CLR VM and C# language – or – 2) Do Java anyway and defend our decision, perhaps making enemies along the way”

This is the content of the Lindholm draft email:

“What we’ve actually been asked to do (by Larry [Page] and Sergey [Brin]) is to investigate what technical alternatives exist to Java for Android and Chrome. We’ve been over a bunch of these, and think they all suck. We conclude that we need to negotiate a license for Java under the terms we need.”

19 ObamaPacman { 09.26.11 at 11:51 am }

@The Mad Hatter #15

The groklaw article says

- Email shows Google willful infringement.
- Disclosure of email was ALLOWED in court by the judge.
- Google tried to hide the mail, using attorney client privilege as an excuse, when no lawyer was involved in the email. Court rejects Google’s excuse.

Also, that little generic throw-away blog madhatter.ca is down at this time. So you are saying all the court documents / court quotes published by fosspatents are fake? Again, Google did not dispute willful infringement of Oracle IP.

20 The Mad Hatter { 09.26.11 at 12:27 pm }

@ObamaPacman,

No, I’m saying that Florian is clueless. He doesn’t understand what he is reading.

Yeah, I know the site is down. Having some fun with the server. I’ve been looking for another ISP, the one I am using is a wet firecracker.

Wayne

21 JohnWatkins { 09.27.11 at 8:13 pm }

“You might notice the difference in spelling of his last name. Müller is the correct spelling. Mueller is an Americanized form.”

Mad Hater,
They’re interchangeable. Just as the esset is equivalent to “ss” in German, so too a “ü” (u with an umlaut) is the same as “ue.” If you doubt it you can always ask Mr. Müller/Mueller why he spells it Mueller on the profile page of his blog:
http://www.blogger.com/profile/13298342449544124176
Or are you trying to force him to “Canadian-ize” his name?

22 JohnWatkins { 09.27.11 at 8:13 pm }

PS
Android’s in trouble.

23 jmfree { 09.29.11 at 8:27 am }

An important bellwether for Google, which they seem completely blind to, is how all of this is affecting public confidence in their brand.

If we want to see an interesting indicator, take a quick look over at a post from yesterday at what has traditionally been “Google fanboi central”: TechCrunch.

It’s not so much the post by MG Siegler (which quotes yet another, embarrassing, and brand new, ham-fisted official Google statement, now saying that an IP cross-licensing deal with Samsung is nothing more than Microsoft’s way to “extort profit”).

It’s the comments.

A year ago it would have been nearly impossible to find a comment critical of Google. Indeed, the occasional critical comment about Google has almost always been shouted down by a mob of Googletopians, who seem to have nothing better to do than brag about how many Google Labs betas they have played with (but don’t really use).

Hardly the case today.

Apologies to DED for posting a link to another site, particularly one of such low intellectual repute. But it’s fairly amazing to see the foul wind the Goog is whipping up. Not to mention entertaining.

http://techcrunch.com/2011/09/28/microsoft-samsung-extortion-google/

24 OneGeV { 09.29.11 at 9:29 am }

jmfree, I suspect TechCrunch is the unusual case of MS “fanbois” mixing it up with the Googlites, rather than a shift in the Googletopian support. The classic paradox of when a stoppable force meets the movable object.

25 jmfree { 09.29.11 at 10:43 am }

OneGeV, you may be correct.

But, whatever their true motives, the outsized number of Goog critics at this moment are only half the story. I also notice how the dominant voices of the freetards (ban all IP, Google is magic) seem to have wandered off.

One notable exception is TC regular Jason Kincaid bravely bullshitting his way through the crisis with the old saw: “…but it’s very early days — it’s only a matter of time til we see startups and other companies manipulating Android to power all sorts of different devices for an array of use-cases.” Now there’s some good old-fashioned Googtopia, dredged up just yesterday by one of the faithful. And weak tea it is.

While we are speculating, allow me to add one more: I suspect Googtopians are more than a little embarrassed by the sight of their heroes being so blatantly humiliated, almost entirely through their own behavior. At a critical moment, they just can’t seem to shake the mentality of the resentful teenager.

Most disturbing of all, whoever approved the issuance of Google’s “extort” statement should clearly be fired, but all evidence would suggest that it was Larry Page.

26 smithlock { 09.30.11 at 3:24 am }

Politics cannot be left out. They are what conjunctions are made of. Anyway, good article. Good Luck!

27 spuy767 { 09.30.11 at 8:10 am }

@The Mad Hatter: I know plenty of people who use their android phones as smartphones too. Thing is, I know just as many people, albeit usually older, who have an Android phone and just complain about it because they just want to make calls.

28 The Mad Hatter { 09.30.11 at 6:06 pm }

@JohnWatkins

Florian and I have already discussed this. He admits that he uses the American spelling only because that is what shows up on his American Visa. You can read the article now that the damned server is working again.

@spuy767

Define older. I’m 55, and I own an IPhone. My boarder is 53, she owns an Android phone. We’ve been comparing applications, she has a lot of the same ones I have. I have an IPhone 3GS which is two years old, she has a brand new Sony Ericsson Xperia. There isn’t a lot of difference between the two in some ways. Technologically there are huge differences of course. But as to how the end user see them? Not that much.

That said, I’d still take my IPhone 3GS. And yes, I’d still take it over an IPhone 4 too. I don’t like the IPhone 4.

Wayne

29 JohnWatkins { 10.01.11 at 10:24 pm }

TMH,
ü evolved from first writing a ue, then a u with a Sütterlin e above it., and finally, since the Sütterlin e looks like 2 ticks, it came to be written as 2 dots. Functionally they’re all interchangeable. Most younger German speakers cant even read Sütterlin script anymore (like many younger English speakers can’t read cursive) so perhaps they think it’s an “Americanized spelling.” But it’s not.

On a more relevant note:
Carthage . . um I mean — Android must be destroyed! ;-)

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