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The Oracle-Google Mess: A Question - Are Any of the Patents Tied to a Specific Machine? - Updated 4Xs: Google Speaks
Friday, August 13 2010 @ 12:32 PM EDT

On the Oracle v. Google litigation announcement, here's something that I don't see anyone else mentioning yet.

On the Oracle patents, in a post-Bilski world, the right question would seem to be:

Are *any* of the asserted Oracle patents tied to a specific machine?
That test wasn't tossed overboard. The Supreme Court said [PDF] it's a helpful test, just not the only one.

Carlo Daffara has the patents Oracle is relying on listed with helpful links here. Groklaw member Celtic_hackr went through them and sees none that are tied to any specific machine. Only look if you are free to do so, but this is a shout out to the lawyers out there to at least investigate this possibility. If it's true, this might turn into one of the most interesting litigations we've ever covered. Yes, Groklaw will cover this litigation soup to nuts.

And may software patents crash into the ocean as an unintended consequence of this patent attack.

I've collected some links to give you context. I put them in News Picks already, but unless I put them in an article, they're hard to find down the road, and now that I've decided Groklaw will cover this litigation, we'll probably want to refer to these resources.

First, the complaint. [ Update 2: I have a local copy now as PDF.] We'll have to wait for the answer to know specifically what Google's defenses are, but I know some of you are asking why the GPL isn't blocking Oracle's copyright claims, at a minimum, let alone the patents. Because Google apparently didn't use the GPL'd version. We'll see if Google's clean room workaround stands up. I'm sure they considered their steps super carefully, but as we saw in the SCO saga, you can still get sued even if a plaintiff is pretty sure he'll lose in the end. I am puzzled why corporations that understand so much about openness still struggle with the GPL. It would protect you, you know. Oracle distributes Linux, after all. Think about it.

As to the why of it, I gather the consensus is that Android is threatening Apple's iPhone. Note in the complaint that Oracle is asking that any software found to be in violation of Oracle's copyrights "be impounded and destroyed." So this is a lot like SCO. Mean as the law allows. I'm restraining myself from saying more. The Boies Schiller hallmark. I'm very sorry to see MOFO's Michael A. Jacobs on board with Boies Schiller on this. He's formidable in patent law. And I like and admire him. But I don't see any way we can be on the same side on this one, although I'll surely be fair to both parties in my coverage. I'm a little appalled that Morrison & Foerster would team up with Boies Schiller on anything after what they've seen in the SCO saga, but it is what it is.

Miguel De Icaza still wants everyone to hitch their wagons to Microsoft's star. He suggests that Google pay off Oracle and then switch to Microsoft .NET:

Google could settle current damages with Oracle, and switch to the better designed, more pleasant to use, and more open .NET platform.
Hahahahahahaha. That's the last life lesson to to be learned from this event, I'd suggest. How about instead what the community has been warning Miguel about for years: don't hitch your code to anybody's patented wagon. Watch out for patents. Watch out for Mono. Watch out for C#. Stallman is warning you:
It is dangerous to depend on C#, so we need to discourage its use.

The problem is not unique to Mono; any free implementation of C# would raise the same issue. The danger is that Microsoft is probably planning to force all free C# implementations underground some day using software patents. (See http://swpat.org and http://progfree.org.) This is a serious danger, and only fools would ignore it until the day it actually happens. We need to take precautions now to protect ourselves from this future danger.

And was he not right about the Java Trap? How many times must he be right before developers listen? I'm talking to you, Gnome. I'm talking to you, Canonical. Care what version of OpenOffice you use. I'm talking to everyone trying to pooh pooh patents as a toxic danger. It is real. And remember, CodePlex was set up to push Mono. That's what they said. Forewarned is forearmed.

And there may be an HTC angle, SiliconANGLE suggests in an article titled, How Google Tried to End Run Java and Why Oracle’s Lawsuit Has Merit:

This unexpected move by Oracle sends a strong and threatening message to Google and the entire Android community—specifically that Oracle will use its intellectual property rights to get compensated for innovations around the exploding mobile marketplace. Oracle’s CEO Larry Ellison is inserting himself in the middle of an ever-evolving battle between Google CEO (and former Apple Director) Eric Schmidt, Apple CEO Steve Jobs, a long-time friend of Ellison’s.
There may be an HTC connection, then, pushing this thing. And the money, of course. With these old-fashioned proprietary guys, it's always about using the law as an anticompetitive weapon. (Remember Jonathan Schwartz telling his war stories about Microsoft trying to shake Sun down?) Which is just one reason why they will all eventually fail, just like Microsoft is now experiencing. Software patents are a drag on innovation and on the economy. Of all times to be a drag on the economy!

On the facts and the law of this particular case, we do still need to hear more details before you can really say whose side has legal merit. We already know that FOSS folks hate patents being used for aggression, but we have to keep an open mind still about who is right and wrong legally. Patent law is such a mess in the US, there are plenty of ways to be bad, so who knows yet who is right or wrong legally, as opposed to ethically. I have no idea yet. I know this: Oracle is doing something that is not done in the FOSS community. We do not admire such behavior. And if it looks like Google tries to sincerely fight against software patents, and if you read Google's amicus brief [PDF] in Bilski it certainly might, using this case as a vehicle, it will surely get community support. I don't know if Google will go that far.

I don't believe Oracle submitted an amicus brief in Bilski, judging by the list on the ABA website. But they took a stand against them in 1994, End Software Patents points out. They provide a helpful link to Oracle's 1994 patent policy, presented in testimony at USPTO hearings that year. Here's an ironic snip:

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.

That was then. This is now. Situational ethics. As Brian Proffitt writes, Oracle is consistently contradictory. Just this week, Oracle declared its love for Linux. Then it told the kernel guys the changes it wants from them. They want it to be more like Unix. heh heh. That's a time-tested way to get what you want from the Linux kernel guys. Make demands. Not. If Oracle wants to be loved back by Linux, they need to learn what conduct is acceptable to the FOSS community, so it doesn't blunder the way it has been. We don't care about your money any more than we cared about Microsoft's. Or your power. Neither power or money motivates FOSS. It's about something bigger than that. And you get to make buckets of money from Linux, I must say. Google built their world on it. And as I said, Oracle distributes it too. Which is why Google would have been smart to use the GPL'd version of Java, in my opinion.

Exhibit A, an interview from 2006 with Ellison, showing he still thinks in old-fashioned ways. At least in 2006, when he imagined that he could be successful with FOSS by grabbing the "intellectual property" and running with it. But brand, which he barely acknowledges at the end of the interview, means reputation. And if the community doesn't like you, they won't help you, which is why his Linux competing with Red Hat was a big failure. Red Hat lives. You know why? Because thus far at least, they try to treat the community and their customers and the license they benefit from well. It's foolish to spit on your upstream suppliers.

Here's a very interesting article about Sun's long history of being what the author, Joel West, calls "semi open" -- a combination of "partly open" and "opening parts". He calls his article on the Oracle announcement of litigation, The Last Gasp of Sun's Semi-Openness. And now the chickens come home to roost. To those pushing open core as a solution, live and learn from the mistakes of others.

Joe Cheng gets credit for coining the litigation SCOracle.

And I would be remiss, comments policy or no, not to quote Tim Bray's memorable tweet on the subject, which I will have to put a period in to get around my software moderation system:

Speaking only for myself as an individual of course: F.uck Oracle.
Update: Google emailed a statement to David Goldman at CNNMoney:
"We are disappointed Oracle has chosen to attack both Google and the open-source Java community with this baseless lawsuit," Google spokesman Aaron Zamost said in an e-mailed statement. "The open-source Java community goes beyond any one corporation and works every day to make the Web a better place."
Baseless. I translate that to mean, Fight.

And now we see a longer statement given to TechCrunch, which tells me I understood correctly:

“We are disappointed Oracle has chosen to attack both Google and the open-source Java community with this baseless lawsuit. The open-source Java community goes beyond any one corporation and works every day to make the web a better place. We will strongly defend open-source standards and will continue to work with the industry to develop the Android platform.”
And here's what Juan Carlos Perez and Chris Kanaracus at ComputerWorld UK found describing what Google's Dalvik does:
As described in official Android documentation, Dalvik is a virtual machine optimized for mobile devices, and all Android applications run in their own process with their own Dalvik instance.

"Dalvik has been written so that a device can run multiple VMs efficiently. The Dalvik VM executes files in the Dalvik Executable (.dex) format which is optimized for minimal memory footprint. The VM is register-based, and runs classes compiled by a Java language compiler that have been transformed into the .dex format by the included "dx" tool," reads an official document about Android for developers. "The Dalvik VM relies on the Linux kernel for underlying functionality such as threading and low-level memory management."

Andy Updegrove thinks it's all about money, not ideology. And Stephen Shankland, as is his wont, has by far the most thorough and I must say interesting coverage (although Andy wins the prize for best headline: "Oracle Sues Google Over Android: What's Up With That?) with background information, including this tidbit:
But my, what a difference a corporate acquisition makes to corporate politics.

"Filing patent suits was never in Sun's genetic code," said James Gosling, a key Java creator, on his blog. But Gosling, who earlier referred to Oracle Chief Executive Larry Ellison as Larry, Prince of Darkness and who became independent after quitting Oracle shortly after the Sun acquisition, also got a good look at Oracle's DNA: "During the integration meetings between Sun and Oracle, where we were being grilled about the patent situation between Sun and Google, we could see the Oracle lawyer's eyes sparkle."

Update 3: Now that the shock has worn off a bit, here comes the disgust and the anger, with folks swearing never to use Java again as long as they live, or MySQL either. For example, in the SF Chronicle's Oracle's Java Google lawsuit: The beginning of Java's epitaph, Yobie Benjamin writes:
Oracle's move to sue Google for the use of Java just tells the programming and development world, "whatever you do, do not develop on this platform because if you do, we'll come and get you." Maybe Oracle does not mean to but it sure feels like it.

Personally, it's Ruby on Rails and Hadoop for now. My application has a browser-based front so Ruby on Rails is great and as far as the server is concerned, I use the old fashioned C++. Given how I use the data I use in my stealth app, I will never want to use mySQL. It's Hadoop for the moment. Now with this Java lawsuit, I will not even consider building a Java-based application. Given a choice, one should never pick uncertainty or maybe even a lawsuit.

James Gosling was right. Goodbye Oracle Java.

And Sam Dean on Gogaom's Ostatic calls Oracle's law suit "the anti-open move of the year." And not in a good way:
This is a shame, and exactly the kind of anti-innovation Silicon Valley behavior that isn't needed as the economic downturn continues to pelt technology companies and everyone else....It is a classic case of a proprieteary software player running roughshod over free, open principles.

Without a doubt, this suit will result in truckloads of bad PR for Oracle. More worrisome, though, is the effect this and further actions will have on Java development going forward. How many tolls is Oracle likely to want to collect now that it got its crown jewel from Sun?

Simon Phipps on ComputerWorld UK:
The right response: Stop Software Patents Petition - If you still think software patents are a spur to innovation, you're not paying attention.
Update 4: A reader comment should be noted:
You seem to be missing the point of why Google didn't just use the GPL'd JavaME. Sun deliberately removed the Classpath exception on JavaME specifically because they saw that most of their licensing opportunities were on mobile platforms. This meant that any *application* developers targeting a GPL'd JavaME platform would be forced to GPL their applications. Not surprisingly Google saw this would be undesirable when trying to attract developers to the platform.
It's true. I did miss that. I was, truth be told, never particularly enamoured of Java, due to Sun's semi-openness issues, so I'm still getting up to speed on those specifics. I'll get there, thanks to all of you. Say, can someone start a thread on prior art so it's all in one place? Also, here are the Oracle Technology Network Developer License Terms . This page describes how it works, linking to the license:
Developers:

All software downloads are free, and most come with a Developer License that allows you to use full versions of the products at no charge while developing and prototyping your applications, or for strictly self-educational purposes. You can buy products with full-use licenses at any time from the online Store or from your sales representative.

And here's an analysis by Stephen Grady at Redmonk with a lot of background on the why of all this. That is the question, after all, why would Oracle do this? Updegrove says money, and of course that is in Oracle's DNA, but what does Oracle want that is big enough to annoy pretty much everyone?
Purely financial justifications for this suit are less than satisfying, however.

To begin with, Oracle would effectively be trading long term ecosystem health for a short term cash windfall. Unless the settlement is historically immense – a difficult outcome to rely on from a planning perspective – it’s not clear that this would be a net win. For all of its sustained success in the application and database markets, Oracle remains as fundamentally dependent on the Java ecosystem as Sun was before it. Even for a company that’s sought and found growth through stack ownership and category dominance, the health of the ecosystem is and must remain a concern.

He suspects the goal is more than royalties. But what? That's not clear to him, though he considers several, but here's what is:
As for predictions, I’ll make only one: whoever wins will also lose. Because this suit is going to negatively impact – probably substantially – Java adoption. The enterprise technology landscape is more fragmented by the day, as it transitions from .NET or Java othodoxy to multi-language heterogeneity. Oracle’s suit will accelerate this process as it introduces for the first time legal uncertainty around the Java platform. Apple and Microsoft will be thrilled by this development, and scores of competitive languages and platforms are likely to see improved traction as a result of Java defections.

Add up these costs, and the only supportable conclusion is that Oracle’s ambitions here are big.

No one seems to be considering one final possibility, that this is just a blunder from a guy who doesn't often make blunders. But hey, we're all human. It's the nature of humans to make mistakes from time and time, and there are no exceptions to that burden we all have to live with. And as Greek mythology points out, it's often our character that leads us to our doom, our qualities as people, our bent, our flaws and many times even our strengths. Is it not conceivable that this is exactly that?

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