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Oracle Files Motion to Strike Google's Answer, Some Counterclaims
Wednesday, October 27 2010 @ 12:50 PM EDT

When I first started to read the title of the motion, I thought with joy that Oracle was dismissing its complaint. But of course, no. That's in my perfect alternate universe, where Oracle comes to its senses and the parties work it all out, in the FOSS community way.

Instead, it is asking the court to dismiss parts of Google's Answer -- some of its counterclaims, particularly the ones claiming that Oracle's patents are invalid -- some of Google's affirmative defenses -- which Oracle calls improbable and too vaguely pleaded -- and believe it or not it would like to censor some of the factual background material in Google's Answer. It says paragraphs 7 through 22 of Google's Answer are merely "a long list of self-congratulatory remarks and polemics that have nothing to do with Google’s counterclaims for non-infringement and invalidity." Oracle says they are immaterial and impertinent. It is to laugh, as they say. Silly stuff already, and we're just clearing the runway.

Actually, it's worse than silly. It's asking to remove all the materials about how beneficial open source is compared to closed. Polemics? Shame on you, Oracle. You used to know better, as shown in the very material information that you now would like removed from Google's filing -- the part about how Oracle, then on the Executive Committee of the JCP, used to vote in favor of open sourcing the Java platform. After buying Java, Google wrote, Oracle reversed course overnight. That's not immaterial. If the court removes all those paragraphs, it would also remove the part in paragraph 17 that tells the court that Google doesn't receive any payment, fee, or royalty for Android. That matters very much in any litigation.

So while Oracle says it's all immaterial and impertinent, I don't think that is why it wants it out. It would like to knee-cap Google by removing the parts that would help Google defend itself from Oracle's patent aggression.

Here's the filing:

10/26/2010 - 35 - MOTION to Dismiss invalidity counterclaims, MOTION to Strike 32 Answer to Complaint, Counterclaim (motion to strike certain affirmative defenses and impertinent matter) filed by Oracle America, Inc.. Motion Hearing set for 12/2/2010 08:00 AM in Courtroom 9, 19th Floor, San Francisco. (Attachments: # 1 Proposed Order)(Peters, Marc) (Filed on 10/26/2010) (Entered: 10/26/2010)

Here's the complex relief Oracle is asking for:
Plaintiff Oracle America, Inc. will and hereby does move to dismiss Defendant Google’s counterclaims for declaratory judgment of invalidity (Counts 2, 4, 6, 8, 10, 12, and 14 of Google’s counterclaims) pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure on the grounds that each of Google’s invalidity counterclaims fails to state a claim upon which relief can be granted. Oracle America further moves to strike Google’s Second, Third, Fourth, Fifth, Seventh, Ninth, Eleventh, Twelfth, and Thirteenth affirmative defenses pursuant to Rule 12(f) on the grounds that each is insufficiently pleaded. Oracle America moves to strike paragraphs through 22 of the Factual Background section of Google’s Counterclaims pursuant to Rule 12(f) on the grounds that they are immaterial and impertinent to any claim, counterclaim, or affirmative defense. This motion is based on this Notice of Motion and Motion, the following Memorandum of Points and Authorities, the pleadings and papers on file in this action, any matters of which the Court may take judicial notice, any evidence or argument presented at the hearing on the motion, and any other matters the Court deems proper.
Here's Oracle's argument on the invalidity issue: they are by statute presumed to be valid, and others have already acknowledged them and respect them. With money. I don't see that as a strong argument, personally, because the whole world knows that patent law got so crazy lots of defendants will pay rather than get sued. But the judge will probably give this argument more weight than I do.

Here's another argument Oracle makes:

Google’s general invalidity claims are particularly implausible in this case given that the doctrine of assignor estoppel bars Google from challenging the validity of any patent assigned by an inventor with whom Google is in privity.1 Google’s invalidity counterclaims fail to provide fair notice of its claims for relief as required by the federal pleading rules and should be dismissed.

__________

1 Several of the named inventors of Oracle America’s patents subsequently joined Google and have developed software for Google. For example, Frank Yellin, co-inventor of the ’520 patent, and Lars Bak and Robert Griesemer, co-inventors of the ’205 patent, are believed to be presently employed by Google.

Just because Oracle wants us not to read them, here, as text, are the paragraphs it is asking the court to censor from Google's Counterclaims section of its Answer:
7. Sun came under significant criticism from members of the open source community, including Oracle Corp., for its refusal to fully open source Java. For example, in August of 2006, the Apache Software Foundation (“ASF”), a not-for-profit corporation that provides organizational, legal, and financial support for open source software projects, attempted to obtain a TCK from Sun to verify Apache Harmony’s compatibility with Java. Although Sun eventually offered to open source the TCK for Java SE, Sun included field of use (“FOU”) restrictions that limited the circumstances under which Apache Harmony users could use the software that the ASF created, such as preventing the TCK from being executed on mobile devices. In April of 2007, the ASF wrote an open letter to Sun asking for either a TCK license without FOU restrictions, or an explanation as to why Sun was “protect[ing] portions of Sun’s commercial Java business at the expense of ASF’s open software” and violating “Sun’s public promise that any Sun-led specification [such as Java] would be fully implementable and distributable as open source/free software.” However, Sun continued to refuse the ASF’s requests.

8. Oracle Corp., as a member of the Executive Committee (“EC”) of the Java Community Process (“JCP”), the organization tasked with managing Java standards, voiced the same concerns regarding Sun’s refusal to fully open source the Java platform. Later that year, in December of 2007, during a JCP EC meeting, Oracle Corp. proposed that the JCP should provide “a new, simplified IPR [intellectual property rights] Policy that permits the broadest number of implementations.” At that same meeting, BEA Systems – which at the time was in negotiations that resulted in Oracle Corp. purchasing BEA – proposed a resolution that TCK licenses would be “offered without field of use restrictions . . . enabling the TCK to be used by organizations including Apache.” Oracle Corp. voted in favor of the resolution.

9. Just over a year later, in February of 2009, Oracle Corp. reiterated its position on the open-source community’s expectation of a fully open Java platform when it supported a motion that “TCK licenses must not be used to discriminate against or restrict compatible implementations of Java specifications by including field of use restrictions on the tested implementations or otherwise. Licenses containing such limitations do not meet the requirements of the JSPA, the agreement under which the JCP operates, and violate the expectations of the Java community that JCP specs can be openly implemented.”

10. Only a couple of months later, in April of 2009, Oracle Corp. announced that it would be acquiring Sun (renamed Oracle America after the acquisition was completed in January of 2010). Since that time, and directly contrary to Oracle Corp.’s public actions and statements, as well as its own proposals as an executive member of the JCP, Oracle Corp. and Sun (now Oracle America) have ignored the open source community’s requests to fully open-source the Java platform.

B. The Open Handset Alliance and Development of the Android Platform

11. The Android Platform (“Android”) is a freely-distributed, open-source software stack for mobile devices that includes an operating system, middleware and key mobile applications. Android was released in 2007 by a group of seventy-eight technology and mobile companies known as the Open Handset Alliance (“OHA”) who have come together to accelerate innovation in mobile devices and offer consumers a richer, less expensive, and better mobile experience. The members of the OHA, which include Google, mobile operators, handset manufacturers, semiconductor companies, software companies and commercialization companies, are each strongly committed to greater openness in the mobile ecosystem.

12. The OHA believes that an open platform – a platform that provides equal access to any who would choose to develop software for the platform – is essential to allow wireless carriers, handset manufacturers, software developers and others to more rapidly bring innovative ideas to the marketplace and to better respond to consumers’ demands. An open platform also ensures that there is no threat of a central point of failure, so that no single industry player can restrict or control the innovations of any other. The objective of Android is an open and shared product that each contributor can freely tailor and customize. The members of the OHA, including Google, have invested heavily in Android by contributing significant intellectual property as well as economic and engineering resources to the development and maintenance of Android.

13. The Android platform includes, among other things, the Android Software Development Kit (“SDK”) and the Dalvik Virtual Machine (“VM”). The Dalvik VM relies on a version of the Linux kernel for core system services such as security, memory management, process management, network stack, and driver model, and as an abstraction layer between the hardware and the rest of the software stack. The core class libraries of the Dalvik VM incorporate a subset of Apache Harmony, a clean room, open source implementation of Java from the Apache Software Foundation. Other than the Harmony libraries, the Android platform, including, without limitation, the Dalvik VM, was independently developed by the OHA.

14. The Android Open Source Project (“AOSP”) is tasked with the maintenance and further development of Android, including incorporating code and submissions from the community of developers who contribute to Android and the tens of thousands of developers who create applications for Android. The goal of the Android Open Source Project (AOSP) is to ensure that the open-source Android software is implemented as widely and consistently as possible, to the benefit of the developer and user communities, and others involved in Android. Google, along with several corporate partners and volunteer technology enthusiasts, contributes resources, including engineers and financial support, to the AOSP.

15. The information and source code for the Android Platform is openly and freely available for developers, manufacturers, or any member of the general public to download at http://source.android.com and http://developer.android.com. The majority of the Android software is made available under the permissive open source license terms of the Apache Software License, 2.0 (“Apache 2.0”). Certain aspects of Android, for example, the Linux kernel patches, are made available under the GPLv2 license.

16. Developers are free to modify the source code of the Android platform to fit their particular purpose. Android’s permissive open-source license allows a developer to adopt the Android platform and freely build software and enhancements on top of the platform, while maintaining the flexibility to release the software and enhancements to the public under either an open source license, or alternatively under a commercial license, which would protect the developer’s proprietary investment in Android.

17. Google does not receive any payment, fee, royalty, or other remuneration for its contributions to the Android Platform.

C. Android and the Java Programming Language

18. Developers for Android can create software applications for Android-based mobile devices using various programming languages, including the Java programming language. For use on the Android platform, these software applications are converted into a set of intermediate instructions – i.e., Dalvik “bytecode,” typically stored in files in the Dalvik Executable (.dex) format – with the “dx” tool included with the Android platform. These .dex files can be executed on any mobile device with a Dalvik VM. The Dalvik VM implements a register-based architecture (distinct from a stack-oriented architecture), where data and parameters are loaded directly into virtual machine registers. The Dalvik VM and .dex format are optimized for battery-powered mobile devices that are more limited in terms of computing and memory resources than desktop computers.

19. Although software applications for the Android platform may be written in the Java programming language, the Dalvik bytecode is distinct and different from Java bytecode. The Dalvik VM is not a Java VM.

20. The Android Platform has been a success in the mobile handset industry. Although Android was a latecomer to the smartphone market – first becoming generally available in late 2008 – there are currently approximately ninety different Android-based mobile devices made by over twenty different manufacturers available for purchase in dozens of countries. Indeed, approximately 200,000 Android-based handsets are activated every day on over fifty different wireless carriers. Android Market – a store where developers can sell applications (“apps”) that they create for Android-based devices – has over 80,000 apps available for download.

21. Android’s popularity has proven to be a catalyst for the Java open source community and the increased use of the Java programming language. Indeed, when Android was first released in November of 2007, Sun CEO Jonathan Schwartz confirmed this fact, congratulating Android and stating that “needless to say, Google and the Open Handset Alliance just strapped another set of rockets to the community’s momentum – and to the vision defining opportunity across our (and other) planets.”

22. The success of the Android platform is due in large part to its open nature, which benefits the entire open source community of consumers, developers, manufacturers, and mobile operators. Android’s permissive open source license allows developers and manufacturers to innovate rapidly under their own terms while simultaneously protecting their proprietary intellectual property, if so desired. Because Android provides open and comprehensive access to handset capabilities and developer tools, developers experience increased productivity and are better able to optimize their Android applications. Mobile operators and handset manufacturers benefit from the innovation, and have great flexibility to customize Android to differentiate their product lines. Handset manufacturers also benefit from lower software costs and faster time-to-market for handsets. Finally, and consistent with the mission of the Open Handset Alliance, all of the benefits to developers, manufacturers, and mobile operators are passed on to consumers who receive more innovative and cost-effective mobile devices and services, and a rich portfolio of applications, that more rapidly respond to their needs and demands.

As a friend, let me just mention something Oracle will otherwise find out the hard way. This filing smells like Boies Schiller to me, their style. Oracle is now at a crossroads. And judging from this filing, my advice is this: You'll mess up plenty if you listen to Boies Schiller, when it comes to the hole you are digging with the FOSS community. They totally don't get open source, judging by the SCO litigation, where they never did grok the GPL and actively fought hard to kill it. What kind of resume is that?

You've got your toes in FOSS waters, presumably because you want to be there, but you need a different swimming coach to guide you in that part of all this. Stop digging. Please.

There. I've said it.

If I hated Oracle or thought it was hopeless, I wouldn't warn them. I have always admired Larry Ellison's genuine courage in standing up to Microsoft. When other companies were too scared of the big bully to even stand up to be counted, Ellison stood up and made a difference. I honor that courage. But this filing is like throwing lit firecrackers into the community. Even the litigation itself is. It's not going to make Oracle any friends. Even if it wins, it loses.

In the best scenario imaginable for Oracle, it gets a little license money from Google and keeps Java under its control. But do you really, really think that will block the community or Google from leaving Java behind in the dust if necessary? If you think that, you don't understand FOSS at all. And with the short-term license money, Oracle will have earned the eternal disgust of the FOSS community. It's a high price to pay, as SCO found out. It didn't care either, in the beginning. Remember SCO's then-CEO Darl McBride saying his duty was to shareholders, not to stand around the campfire sing Kumbaya with Linux world? How'd that work out for SCO shareholders, would you say, even with SCO hiring David Boies? Short-term thinking doesn't always pay, even with great lawyers helping you, and underestimating the FOSS community, which Darl's dismissive and offensive comment reflects, doesn't either. The company should have instead made its Linux offerings appealing to the Linux world. Caldera kind of invented open core, if you think about it, and it offended pretty much everyone, with Richard Stallman calling the company a parasite. How'd that work out, Caldera?

And just so you understand why this filing is so offensive: The community is about ethical values, where it's expected that one acts with dignity and a certain sense of fair play. The competition is for the best code, the best product, not from mean or dirty plays. We leave that to Microsoft types. Oracle, stop digging, my friend, please, before it's too late. Because if you go forward, we'll understand that you don't care about the community at all, only about short-term money. FOSS is going to win the money race too in the end, it appears, in any case. It's just a matter of time. So think longer term please. Good will is money too, you know. And the ways Oracle is used to fighting won't work here. It'll just dig and dig and dig a deeper and deeper hole, so deep even NASA's technology won't be able to get you out of the underground cave you'll end up in.

So, I'm sorry to say that sadly, the case is going forward, whether it makes sense or not, whether it's getting ugly or not. We have a Timeline for this case, and I'll keep you up-to-date on new events.


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