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Oracle Opposes Google's Motion to Compel - Updated 2Xs -- They Worked It Out
Wednesday, February 09 2011 @ 08:53 AM EST

Oracle has filed its opposition [PDF] to Google's Motion to Compel Oracle to supplement its patent infringement contentions with more specificity. It's a document that fairly reeks of both confidence and scorn. The letter to the judge begins like this:
Dear Judge Alsup:

Is Google really saying that it is not on notice of Oracle’s infringement theories?

Oracle mocks Google's painstaking arguments regarding Oracle needing to disclose with more precision exactly how it thinks its patents are being infringed claim by claim.

It's a good letter, as work product from Morrison & Foerster always is, but along with the confidence in Oracle's cause and some expressed indignation, there is also a hint of frustration:
The Android platform was created by Google and was released and promoted for widespread adoption. Having succeeded in that goal, Google now wants to throw its licensees and users under the bus, and feign ignorance of the uses to which its creation is being put.
If you think a defendant is playing games, it can be very annoying. And if you are going after a deep-pockets defendant and thought it was going to be a breeze, it is supremely annoying when you see that the defendant has come up with a strategy or defense, depending on how you look at it, to deflect the liability away from its own wallet and instead distribute it in little pieces over lots of little people, so to speak. No big payday that way. Oracle would prefer that Google just fess up and pay them, in short. It saw the case as a slam dunk, and Google is not cooperating.

I gather Oracle has figured out that this is going to be a hard-fought case, not an easy payday after all, and that it's going to take a long time and effort:

To prosecute the case more efficiently, Oracle asked Google to stipulate that Google’s partners’ and licensees’ versions of Android are the same in relevant aspects as the versions that Google distributes; Google declined. Google’s refusal may necessitate difficult third-party and even international discovery, but this issue bears on the ultimate proof at trial, not on the sufficiency of Oracle’s infringement contentions.
See what I mean?

Update: This is probably a good place to put a snip from the Android FAQ that Groklaw member jbb found and posted in a comment:

Is compatibility mandatory?

No. The Android Compatibility Program is optional. Since the Android source code is open, anyone can use it to build any kind of device. However, if a manufacturer wishes to use the Android name with their product, or wants access to Android Market, they must first demonstrate that the device is compatible.

That might explain why Google won't stipulate to all Androids being identical and why it has no idea what to prepare for without more specificity from Oracle. Oracle portrays Google as raising a silly problem by refusing to stipulate, and it implies strongly that Android has more control than it admits, but the FAQ speaks eloquently that at a minimum the picture is not as simple as Oracle seems to think. - End Update.]

Oracle and Google have each thrown a dime on the ground and they are each standing firm on it. Oracle believes, apparently, that all Androids are the same with regard to the infringement; Google thinks they are different enough that Oracle needs to get specific. Both have able legal advice, and that means usually that each has found cases that support it.

I will show you Oracle's case in a minute. But if you are Google, and you don't think you've infringed a thing or that the Oracle patents are invalid anyhow, why would you just give up without a fight? Even if Google were to lose in the end, it will be years before Oracle sees a penny from this case, and while Oracle spends millions for an uncertain result in the end, all the time this case winds its way through the molasses that is the US court system, Android is simply taking over the world and evolving and morphing too.

Oracle says it's given Google what it needs to prepare, hundreds of pages of examples, and it listed all the versions of Android it could think of that it believes infringe, seven "representative" Android devices, Google’s Nexus One and Nexus S; the HTC EVO 4G, Droid Incredible, and G2; the Motorola Droid; and the Samsung Captivate. As far as Oracle is concerned, they all infringe. It doesn't know if the version of Android that came out since the case was filed, Gingerbread, infringes. It's looking into that, but what more can Oracle be expected to tell Google? 407 pages [PDF] isn't sufficient? Is Google kidding, you can almost hear Oracle asking?

As for Google's argument that Oracle must provide proof of a lack of noninfringing uses in connection with its claim of contributory infringement, Oracle is blunt:

With respect to contributory infringement specifically, the Patent Local Rules do not require any “allegation as to the lack of noninfringing uses as required by 35 U.S.C. 271(c).” Patent L.R. 3-1(d) requires a patentee to identify “any direct infringement and a description of the acts of the alleged indirect infringer that contribute to or are inducing that direct infringement.” Oracle has done that.
If you recall, Google relied on this case, Halton Co. v. Streivor, Inc. [PDF], which Judge Alsup decided and which we discussed in detail earlier. Here's a brief snip to remind you:
Induced infringement under 35 U.S.C. 271(b) requires the direct infringement by another entity, and that this direct infringement be “actively induce[d]” by the party accused under Section 271(b). See i4i Ltd. Partnership, 598 F.3d at 851. As the above excerpts from the complaint illustrate, no entity other than defendant as been accused of directly infringing the ’421 patent. Moreover, there are insufficient facts supporting a plausible inference of active inducement. The complaint merely alleged that defendant “makes, uses, sells and/or offers to sell” the accused infringing product, and continued to “intentionally” and “wilfully” infringe after receiving notice by plaintiff in April 2009 of possible infringement of the ’421 patent (Compl. ¶¶ 11–13). No mention of any “specific intent to encourage another’s infringement” is made.

Similarly, the complaint is devoid of facts to support a plausible inference of contributory infringement. As the excerpts from the complaint illustrate, there was no allegation by plaintiff that the accused commercial kitchen product was a “component of a patented machine . . . constituting a material part of the [patented] invention” or that the accused product was not capable of “substantial noninfringing use” (ibid.). 35 U.S.C. 271(c). Nothing alleged in the complaint fits the theory of contributory infringement.

It does support Google's position if there is sufficient variety among Android products and/or if Oracle's patents are not a material part of the products and they have significant noninfringing use, which Google says they do.

But Oracle has a case too. Here's Oracle's, Dynacore Holdings Corp. v. U.S. Philips Corp. At first it seemed to me to be an odd choice, given its, to my reading, support of Google's position, but look at the last paragraph of this excerpt:

Perhaps the clearest articulation of the error inherent in Dynacore's allegations arose not in the context of patent law, but rather in a complex question of copyright law. Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417, 104 S.Ct. 774, 78 L.Ed.2d 574 (1984). Sony's Betamax allowed home users to tape copyrighted programs from their televisions. The copyright owners sued Sony for contributory infringement. Id. at 419, 104 S.Ct. 774. The parties conceded that consumers could use the Betamax to tape programs for both infringing and non-infringing purposes. The Supreme Court found that concession fatal to the contributory infringement claim: "The Betamax is, therefore, capable of substantial non-infringing uses. Sony's sale of such equipment to the general public does not constitute contributory infringement of respondents' copyrights." Id. at 456, 104 S.Ct. 774.

The Supreme Court's reasoning derived from patent law because "[t]here is no precedent in the law of copyright for the imposition of vicarious liability.... The closest analogy is provided by the patent law cases to which it is appropriate to refer because of the historic kinship between patent law and copyright law." Id. at 439, 104 S.Ct. 774. "In the Patent Act both the concept of infringement and the concept of contributory infringement are expressly defined by statute." Id. at 440, 104 S.Ct. 774. Nevertheless, the Patent Act does not suggest "that one patentee may object to the sale of a product that might be used in connection with other patents. Moreover, the Act expressly provides that the sale of a 'staple article or commodity of commerce suitable for substantial non-infringing use' is not contributory infringement." Id. (citations omitted).

Of more direct relevance to Dynacore, however, was the Supreme Court's explanation that the statutory theories of indirect patent infringement, as developed through case law, "deny the patentee any right to control the distribution of unpatented articles unless they are unsuited for any commercial non-infringing use," id. at 441, 104 S.Ct. 774 (citation omitted), because the "sale of an article which though adapted to an infringing use is also adapted to other and lawful uses, is not enough to make the seller a[n indirect] infringer. Such a rule would block the wheels of commerce." Id. at 442, 104 S.Ct. 774 (citations omitted).

The Sony standard for vicarious infringement liability, which the Supreme Court imported into copyright law from the narrow patent law reference to "a staple article or commodity of commerce suitable for substantial non-infringing use," 35 U.S.C. § 271(c) (emphasis added), remains a valid articulation of patent law even beyond staple articles and commodities: The mere sale of a product capable of substantial non-infringing uses does not constitute indirect infringement of a patent. See, e.g., Jansen, 342 F.3d at 1332; Anton/Bauer, 329 F.3d at 1349.

Dynacore must therefore either demonstrate that LANs compliant with the IEEE 1394 Standard necessarily infringe the '732 Patent, or point to a specific instance of direct infringement and restrict its suit to liability stemming from that specific instance. We must therefore determine whether all LANs compliant with the IEEE 1394 Standard directly infringe the '732 Patent, or whether there may also be substantial non-infringing configurations of IEEE 1394 compliant networks. We do not reach the defendant's liability under § 271(b) or (c) if there are substantial non-infringing uses of the defendants' products and there is no evidence of active and willful inducement.

See the 'or' in the last paragraph? That is what Oracle is saying, I think, that it has a choice -- it can either tell Google claim by claim exactly what specific Androids infringe and precisely how in each instance, OR it can say they all necessarily do. It chose the latter, although it points out that it showed some specifics too.

I'm thinking what Oracle will argue at the hearing is that all Androids of necessity do infringe and that Google is guilty of "active and willful" inducement, and so for that reason it doesn't have to point to a specific instance of direct infringement. In any case, this is what it looks like the hearing will be about on the topic of requirements for Oracle to disclose specific acts. Everything will depend, I would say, on whether Google can demonstrate that some Android products are so different from the others that they can't possibly infringe or that if they do infringe, they do so in such a variety of different ways that they can't prepare a defense unless Oracle gives them a map with at least some X's on it, or that the patents represent an insignificant part of the products even if they are infringing and Androids have lots of noninfringing uses, that Oracle is, in effect, trying to shut down the wheels of commerce. And the one weakness that really could matter is whether Gingerbread doesn't turn out to be like the others. If that is what Oracle determines, then its entire argument falls, I think. Then the 7 Android products are representative of nothing except Oracle's need to get specific about all seven, distinguished from Gingerbread. All means all, and if Gingerbread doesn't infringe, there is no 'all' in this picture.

These are their positions, then, as they glare at each other across the field of battle, but remember that these are just the arguments about one topic -- whether or not Oracle must provide more specifics. Still, because of the two cases and the arguments each is making, I'd say we will get a pretty good look at the direction things will take after the dispute is settled.

Here's the docket:

02/07/2011 - 82 - Memorandum in Opposition re 79 MOTION to Compel Regarding Oracle's Patent Local Rule 3-1 Disclosures filed by Oracle America, Inc.. (Peters, Marc) (Filed on 2/7/2011) (Entered: 02/07/2011)

02/08/2011 - 83 - NOTICE of Appearance by Cheryl A. Sabnis of Counsel of Renny F. Hwang (Sabnis, Cheryl) (Filed on 2/8/2011) (Entered: 02/08/2011)

Hwang is an in-house counsel at Google, being added to the already large team of lawyers on Google's side. He's a graduate of Harvard Law School who specializes in intellectual property litigation.

Update 2: The lawyers worked it out at the meet and confer prior to the hearing:

02/09/2011 - 84 - Minute Entry: Discovery Hearing held on 2/9/2011 before William Alsup (Date Filed: 2/9/2011). (Court Reporter Kathy Wyatt.) (dt, COURT STAFF) (Date Filed: 2/9/2011) (Entered: 02/09/2011)

02/09/2011 - 85 - ORDER REGARDING DISCOVERY AND DISCLOSURE DISPUTES re 77 First MOTION to Compel Google's Responses To Interrogatory Nos. 4-16 filed by Oracle America, Inc., 79 MOTION to Compel Regarding Oracle's Patent Local Rule 3-1 Disclosures filed by Google Inc.. Signed by Judge Alsup on February 9, 2011. (whalc1, COURT STAFF) (Filed on 2/9/2011) (Entered: 02/09/2011)

02/09/2011 - 86 - ORDER REGARDING MOTION MRACTICE. Signed by Judge Alsup on February 9, 2011. (whalc1, COURT STAFF) (Filed on 2/9/2011) (Entered: 02/09/2011)

And here's the upshot:
ORDERED AFTER HEARING:

Parties met and conferred in the Court’s jury room from 8:00 am to 11:00 am. Parties stated for the record they agreed to further supplement the disclosures by 2/18/11 and will update the infringement and non-infringement contentions by 4/1/11. The interrogatory responses have also been resolved.

Sounds like a Google win to me overall.

And the judge says he's really busy with a criminal trial, so for now he doesn't want any motions filed unless they ask for permission:

As explained at the February 9 hearing, a large-scale criminal trial before the undersigned judge will begin on March 7, 2011, and is expected to conclude during the late summer. Because this trial will consume an unusual amount of time and resources, motions in civil cases will be considered and heard only on a selective basis. Except for discovery disputes, no motions may be filed in this action without prior written approval. A party seeking approval to file a motion must file a précis that summarizes the essence of the motion and explains its urgency. Any party opposing approval to file based on the précis may file an opposition by noon on the second business day following the day on which the précis was filed. Both the précis and the opposition must be three double-spaced pages or shorter and may not contain footnotes or attachments. After considering the précis and the opposition (if any), the Court will either grant or deny leave to file the motion. If leave is granted, a briefing schedule and hearing date will be set.
- End Update 2.]

Here is Oracle's Memorandum in Opposition as text, so you can read all the other points Oracle makes. I confess that this case is starting to fascinate me. It's just about perfect for learning about patent law, I'd say, because I learned a lot just from this one motion, and that's our goal:

*************************

[Morrison & Foerster letterhead]

February 7, 2011

The Hon. William Alsup
United States District Court
Northern District of California
450 Golden Gate Avenue
Courtroom 9, 9th Floor
San Francisco, CA 94102

Re: Oracle America Inc. v. Google Inc., Case No. 3:10-cv-03561-WHA
Opposition to Google’s Motion to Compel Infringement Contentions

Dear Judge Alsup:

Is Google really saying that it is not on notice of Oracle’s infringement theories? Oracle’s infringement contentions identified each version of the Android platform then known to Oracle1 that infringes the asserted patent claims. Oracle’s contentions include nearly four hundred pages of charts, showing in exacting detail the parts of the Android platform that infringe Oracle’s patents and explaining how the infringement is accomplished, with references to Android’s creators’ presentations, Android documentation, Android architecture, specific Android programs, specific Android source code files, particular lines of Android source code, and down to individual lines of Android assembly code.

The Android platform was created by Google and was released and promoted for widespread adoption. Having succeeded in that goal, Google now wants to throw its licensees and users under the bus, and feign ignorance of the uses to which its creation is being put. Google knows quite a bit more about how Android is implemented and used than its letter to the Court suggests. For example, Google prohibits anyone from using the Android trademark unless their device is determined to be “Android compatible.”2 Of significance to this lawsuit, through this licensing requirement, Google forbids device manufacturers from modifying aspects of Android that are copied from the Java platform: “Android follows the package and class namespace conventions defined by the Java programming language. To ensure compatibility with third-party applications, device implementers MUST NOT make any prohibited modifications . . . to these package

The Hon. William Alsup
February 7, 2011
Page Two

namespaces: java.*; javax.*; sun.*; android.*; com.android.*. . . . Device implementers MAY modify the underlying implementation of the APIs, but such modifications MUST NOT impact the stated behavior and Java-language signature of any publicly exposed APIs.”3 Through this and other licensing mechanisms, Google ensures that any device called “Android” functions exactly as Google intended it to.

This and other evidence will show that Google is liable to Oracle for both direct and indirect infringement. But it is not necessary to prove one’s case through infringement contentions. All that is needed is that they “be sufficient to raise a ‘reasonable inference that all accused products infringe.’” Shared Memory Graphics LLC v. Apple, Inc., No. C-10-2475 VRW (EMC), 2010 U.S. Dist. LEXIS 138868, at *11 (N.D. Cal. Dec. 30, 2011) (quoting Antonious v. Spalding & Evenflo Cos., Inc., 275 F.3d 1066, 1075 (Fed. Cir. 2002)). To prosecute the case more efficiently, Oracle asked Google to stipulate that Google’s partners’ and licensees’ versions of Android are the same in relevant aspects as the versions that Google distributes; Google declined. Google’s refusal may necessitate difficult third-party and even international discovery, but this issue bears on the ultimate proof at trial, not on the sufficiency of Oracle’s infringement contentions.

Oracle satisfied Patent L.R. 3-1’s requirement to identify each accused instrumentality for each asserted claim. Depending on whether the asserted claim is directed to a system, a method, or a computer software product, the accused instrumentalities are computers running Android or the Android development environment, the users of such computers (including application developers or end users), or the physical software medium itself (including Google’s webserver). Oracle provided examples of such; as Google concedes, Oracle’s contentions identify seven representative Android devices, including Google’s Nexus One and Nexus S; the HTC EVO 4G, Droid Incredible, and G2; the Motorola Droid; and the Samsung Captivate. (IC at 2.)4 Google ignores these and other examples, and appears to demand that the Court should require Oracle separately to list in its claim charts each Android device sold by third parties not joined in this litigation. It is Oracle’s contention that all such devices function in the same way with respect to the patented technology, and that is apparent from the contentions. If indeed it matters to Google, Google knows better than anyone which devices are “Android” devices. Granting Google’s motion would simply add to the length of Oracle’s claim charts without providing any additional substantive information.

Google’s complaints about Oracle’s indirect infringement contentions are another example of attacking form instead of substance. To support a claim of indirect infringement, a patentee may identify either individual acts of direct infringement, or an entire category of

2

The Hon. William Alsup
February 7, 2011
Page Three

infringers. See Dynacore Holdings Corp. v. U.S. Philips Corp., 363 F.3d 1263, 1274 (Fed. Cir. 2004) (“Plaintiffs who identify an entire category of infringers (e.g., the defendant's customers) may cast their theories of vicarious liability more broadly, and may consequently seek damages or injunctions across the entire category.”). Here, and unlike the plaintiffs in the cases Google cites, Oracle identified categories of defendants who directly infringe, including manufacturers of Android products, application developers, service providers, and end users. (Note that Google itself falls within many of these categories, being an Android device seller, an Android application developer, and an Android user.) In its claim charts, Oracle identifies the Google-provided Android elements that infringe each claim, and from these, Google is specifically on notice as to which components it needs to defend. For example, Oracle explained how Google’s Dalvik virtual machine infringes the method claims of the ’205 patent when it runs. (IC at 113 et seq. & 158 et seq.) Google designed Dalvik to operate in an infringing manner and intends for Android users to use Dalvik in that manner. For another example, Oracle explained how Google’s provision of Android software contributes to the infringement of the computer system claims of the ‘447 patent when it is loaded onto and run by a computer system, at least in those cases where the processor and memory are not also provided by Google. (IC at 241-242.)

Google’s last point is an attack on Oracle’s word choice. Oracle’s contention that Google indirectly infringes “to the extent” that Google induces or contributes to direct infringement does indeed “affirmatively set forth a claim of indirect infringement.” It is an acknowledgement that the more Google distributes software that infringes when run and does everything it can to encourage others to use the infringing software and promote its widespread adoption, the greater Google’s liability for indirect infringement. With respect to contributory infringement specifically, the Patent Local Rules do not require any “allegation as to the lack of noninfringing uses as required by 35 U.S.C. 271(c).” Patent L.R. 3-1(d) requires a patentee to identify “any direct infringement and a description of the acts of the alleged indirect infringer that contribute to or are inducing that direct infringement.” Oracle has done that.

For the reasons above, Oracle respectfully requests that the Court deny Google’s motion to compel supplemental infringement contentions.

Respectfully submitted,

Marc David Peters

Counsel for Plaintiff Oracle America, Inc.

_______________
11 The latest version of Android, “Gingerbread,” was released after Oracle served its infringement contentions. Oracle has yet to determine whether this requires any formal amendment to the infringement contentions.

2 http://source.android.com/faqs.html#compatibility.

3 http://source.android.com/compatibility/android-2.2-cdd.pdf at 8.

4 “IC” refers to Oracle’s Infringement Contentions, which were attached to Google’s motion. The page numbers refer to the consecutive pagination in the upper right hand corner of each page.

3


  


Oracle Opposes Google's Motion to Compel - Updated 2Xs -- They Worked It Out | 175 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Oracle the Usenet troll ..
Authored by: Anonymous on Wednesday, February 09 2011 @ 09:22 AM EST
"Google now wants to .. feign ignorance of the uses to which its creation is being put"

Please do our homework for us ..

"To prosecute the case more efficiently, Oracle asked Google to stipulate that Google’s partners’ and licensees’ versions of Android are the same in relevant"

And would you mind also sabataging your own case so as to make it easier for us to go after your own partners’ and licensees’. Google to Oracle: yea sure, we'll even let you write up the case for us .. :)

[ Reply to This | # ]

Oracle Opposes Google's Motion to Compel
Authored by: Henning Makholm on Wednesday, February 09 2011 @ 10:04 AM EST
So what I gather is this:

Oracle has some legal theory about why something Google did is unlawful. Oracle has sketched their theory coarsely in their complaint, but left it for Google and/or the judge to fill in the blanks at this stage. Google thinks the theory cannot possibly hold water and would like to shoot it down. But they cannot start shooting at it before the blanks are filled. Otherwise, Google would have to try to shoot at a hypothetical theory created by imagining what might fill in the blanks in Oracle's theory, and if they did so it would be trivially easy for Oracle to yell "strawman!" and decide that the actual details they had in mind were something different completely.

Thus, Google is demanding that Oracle commit to a particular instance of their legal theory, whereas Oracle claims that the rough sketch they've given is enough to allow Google to imagine the rest (which allows Google to prepare a variety of defenses, but lets Oracle delay choosing which of those defenses Google will have an opportunity to present in court).

Is that about where we stand?

[ Reply to This | # ]

Oracle Opposes Google's Motion to Compel
Authored by: llanitedave on Wednesday, February 09 2011 @ 10:18 AM EST
I'd think they need to be a bit careful with the snark. It evokes the old saw that "when the facts are against you, pound on the law. When the law is against you, pound on the facts. When the law and the facts are both against you, pound on the table." Google's position is not obviously wrong to most of the astute observers here, neither legally nor factually. Oracle needs to be concentrating on the law and the facts, then. All the sarcasm brings to my mind is a bit of table-pounding.

---
Of course we need to communicate -- that goes without saying!

[ Reply to This | # ]

Do Linux and Oracle also infinge?
Authored by: Anonymous on Wednesday, February 09 2011 @ 11:05 AM EST
I'm thinking what Oracle will argue at the hearing is that all Androids of necessity do infringe
Given that Google says that "Android is a software stack for mobile devices that includes an operating system, middleware, and key applications", then Linux must also infinge. Consequently, Oracle (that distributes Oracle Linux must also infinge! If so, then does the GPL come into play? If not, how can Oracle America use the word Android anymore because it lacks any specificity?

[ Reply to This | # ]

Can anyone explain in english what is being infringed?
Authored by: Anonymous on Wednesday, February 09 2011 @ 12:02 PM EST
All I have been able to glean is that android infringes on some Oracle patents
(according to Oracle). To the uninitiated (like me), android is the complete
software stack that comes with some smartphones. However, that's a lot of
software.. Which part is infringing?

Thanks!

[ Reply to This | # ]

Corrections Thread
Authored by: bugstomper on Wednesday, February 09 2011 @ 12:37 PM EST
Please summarize the correction in the Title box, error->correction or
s/error/correction/

[ Reply to This | # ]

Off Topic threads
Authored by: bugstomper on Wednesday, February 09 2011 @ 12:51 PM EST
Please stay off topic here. Stay interesting, but off topic.

[ Reply to This | # ]

News Picks Thread
Authored by: bugstomper on Wednesday, February 09 2011 @ 12:53 PM EST
Pick your news here. Please put the title of the article in the Title box and
use HTML Formatted mode to include a clickable link to the article for the
convenience of readers after the article has scrolled off the News Picks
sidebar.

[ Reply to This | # ]

COMES goes here
Authored by: bugstomper on Wednesday, February 09 2011 @ 12:55 PM EST
Please post your contributions to the transcription effort here

[ Reply to This | # ]

Necessarily infringe the Patents
Authored by: Ian Al on Wednesday, February 09 2011 @ 12:58 PM EST
I see that if all versions of Android necessarily infringe all of the patents
then Google's demand for specificity fails.

However, why Android and not Symbian? If Oracle don't show how the Android
platform among all the other mobile operating systems directly and necessarily
infringes on the patents, then pointing at all the Android devices is not
enough.

The Android platform is not written in the Java language. Oracle can see the
source code on the Internet and prove that to themselves. They have not, and
cannot, prove that the Android platform infringes on their patents because of
the use of Java. If, on the other hand, this is nothing to with Java then Oracle
have to show where in Android the infringement on each patent is to be found and
why Android necessarily infringes. Otherwise, it is a case of 'you know you have
infringed our patents. Now show us where in Android you have done it'.

Oracle's only hope is to prove that Google has induced app writers to directly
infringe on Oracle's patents because they are all written in the Java language
and therefore of necessity infringe the patents.

Excuse me while I spit on the carpet. How is it that just the use of the Java
language guarantees that all the apps., after cross-compiling to run on Dalvik,
still manage to infringe on the patents, of necessity, when installed on Android
phones and why is this Google's fault if the same apps. run on non-Android
phones using the Java virtual machine? Is it not Oracle's fault for inducing
apps. writers to code in Java by open sourcing the language and the libraries?
Oracle claim that Java is a cross-platform environment and they induce
developers to program in Java for that reason.

The versions of Android are different on each manufacturer's and each network
supplier's phone. That is even for the same point release of Android. It's
actually very irritating to Android phone users. The only way that Oracle should
be able to prevail with their argument is if they specify the common apps. on
every Android phone and every network that infringe on a patent. Further, they
have to prove that the apps. were written in Java. Remember that many apps are
proprietary. Oracle have to do that for each patent in turn.

What discovery can Google supply on independent app. publishers programming
practices? None at all. If Oracle are confident, they are wrong to be so. They
should realise how far from showing Google infringement or inducement of
infringement Oracle is. They are even further from demanding discovery from
Google when the only possible infringements are by other developers. Further,
the phone manufacturers and the networks choose which apps. appear on their
phones. They and the customers. Oracle cannot demonstrate that all Android
phones infringe of necessity.

---
Regards
Ian Al
SCOG: Yes, they hit the ground. The lawyers are now taking them to the centre of
the Earth. The 'centre of the Earth' is irony.

[ Reply to This | # ]

Oracle "Please put this noose around your neck"... Google rolls eyes and smirks
Authored by: SilverWave on Wednesday, February 09 2011 @ 01:18 PM EST
If you give an inch they will take a mile... could have being created to define
Oracle.

Fight them on every issue.

Never back down.

Never turn your back.

---
RMS: The 4 Freedoms
0 run the program for any purpose
1 study the source code and change it
2 make copies and distribute them
3 publish modified versions

[ Reply to This | # ]

Oracle wants to steal Android
Authored by: Anonymous on Wednesday, February 09 2011 @ 01:32 PM EST
What else do you need to know?

[ Reply to This | # ]

Oracle Opposes Google's Motion to Compel - Updated 2Xs -- They Worked It Out
Authored by: Anonymous on Wednesday, February 09 2011 @ 09:31 PM EST
Device implementers MAY modify the underlying implementation of the APIs, but such modifications MUST NOT impact the stated behavior and Java-language signature of any publicly exposed APIs.”

Patents don't protect what a device does, they only protect the method by which it is done. You are free to design around a patent by finding a device that does the same thing in a different way. You can't protect the general idea of a device to trap mice. You can protect a specific mousetrap. If somebody else designs a device which traps mice by a different method, your patent doesn't cover it.

In this case, the java namespace and API define what the application does (traps mice) as distinct from how it does it. This extract makes it clear that not all Android devices may be using the same method to achieve that objective (they may use a different method to trap the mice).

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differing Androids?
Authored by: Anonymous on Wednesday, February 09 2011 @ 10:42 PM EST
You can buy fridges, washing machines and other "NON mobile" devices
running Android... and the majority of them don't have the market or the ability
to run apps.

which leads to two interesting points...
1. The GPL for java usage stipulates non mobile.... a fridge is not mobile,
therefore it would comply???
2. The version in washing machines etc without market or apps probably have
Dalvik stripped out as unnecessary.. meaning they are substantially different
versions that prove Googles point.. they probably know of hundreds of other
examples that prove the same point.

just some thoughts..


regads

Frank

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It's all rsteinmetz70112 and PJ's Fault
Authored by: Ian Al on Thursday, February 10 2011 @ 05:41 AM EST
Both of you lead me to believe that the 407-page document contained the damning
evidence of patent infringements, with specificity. I will not claim to have
closely examined Oracle's points and you will find out why in the child to this
comment.

My summary is that Oracle are citing Java and that there is no there, there. Oh,
and I need to clean my carpet, again.

---
Regards
Ian Al
SCOG: Yes, they hit the ground. The lawyers are now taking them to the centre of
the Earth. The 'centre of the Earth' is irony.

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Throwing people under the bus.
Authored by: reiisi on Thursday, February 10 2011 @ 07:00 AM EST
There would be no bus were Oracle not trying to put it on the highway.

And Oracle wants Google to be the driver.

So they can accuse Google of throwing people under the bus.

The problem here is that this "IP" thing is a bus of another color, it
is now on the highway, running at highway speeds, and there is no driver. If
Oracle and SCO and others think they benefit now, it will come back to haunt
them when the weight of this false legal concept of IP brings the whole economic
system crashing down and lets all the petty Napoleon wannabees out of their
cages.

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Update 2: The lawyers worked it out
Authored by: webster on Thursday, February 10 2011 @ 01:17 PM EST
.

or - Come back next spring.

They saw the much better course. They promised to supplement their responses.
They may even have promised to submit them in the form and detail the other side
wants. Let's hope it didn't take all three hours. They should send this judge
to the Middle East.

PJ terms it a victory for Google. Well it is. They are the Defendant. As with
criminal procedures, delay is its own reward. Under the principle that it is
better that nothing happen rather than something bad happen, delay is a
resounding victory. The judge has other things to do and has warned the lawyers
off. No motions before April. There will be no orders to compel before tax
time. To be sure, they can keep on keeping on, doing nothing or something.
They can fight later. There's always something.

If footnote 1 in Google's opposition is accurate and admitted to by Oracle
attorneys, it is no wonder they did want to go before the judge on this issue.
They already agreed to supplement responses to interrogatories by a certain
date, but then Oracle fired off a motion to compel blaming Google for not
already filing appropriate responses. Dirty pool and a treacherous breach of
trust. Unfortunately, without filin' and fightin' in February and March, the
peanut gallery won't learn anything.

~webster~

.

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Oracle Opposes Google's Motion to Compel - Updated 2Xs -- They Worked It Out
Authored by: Anonymous on Friday, February 11 2011 @ 07:26 AM EST
Lets get this straight. You can build an Android without using Java.

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