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Oracle's Reply to Google's Answer with Counterclaims
Thursday, December 02 2010 @ 04:06 AM EST

Oracle has now filed its Reply to Google's Answer with Counterclaims to Oracle's Amended Complaint.

And now that I've read all three documents, I think I've finally understood what it's about, at least the big picture. It's an intriguing case. Standard wisdom would indicate that Google would settle, pay up, and move on. From that viewpoint, Google's filing would be mostly positioning for settlement purposes.

But nothing in patent law is normal right now, so if Google is interested in getting these patents tossed overboard in a way that could have broader implications for software patents, they might decide to go all the way with this. After all, they have alleged that each of Oracle's patents is invalid "because one or more claims are directed to abstract ideas or other non-statutory subject matter", and frankly the first thing I noticed with the patents was that they didn't seem to be tied to a specific machine, so depending on how the US Supreme Court defines its terms after Bilski, this case could be the one to get that firmed up. Google has a strong record of winning patent infringement cases, so they know what they are doing.

It's a question that they'll answer based on their analysis of the patents and whether this is the case to fight to the end. Corporations don't think like individuals, of course, so it could go either way.

Since we can't know what they're thinking or planning, we'll assume they plan to fight, so I've done a chart of the counterclaims and Oracle's answer to each of them, which I hope will be helpful in parsing out each side's position with some clarity.

Here is Oracle's filing, first of all:

11/29/2010 - 60 - ANSWER TO COUNTERCLAIM 51 Answer to Amended Complaint, Counterclaim by Oracle America, Inc.. (Peters, Marc) (Filed on 11/29/2010) (Entered: 11/29/2010)

When you read it, you'll notice that Oracle references numbered paragraphs in Google's filing. Remember that Google has more than one set of numbers in that filing, first in its Answer section, 1-47, then the prayer for relief and then the jury demand, and then it starts again with paragraph number 1 in its section on defenses, and then come the counterclaims, with yet another beginning at number 1, and then with the section marked Factual Background it begins with paragraphs 1-100. Those last are the ones I'll be highlighting in the chart. That's how lawyers keep it all straight, so they can reference the section and paragraph they want to argue about.

Why do I say that normally you'd expect Google to position strongly and then negotiate a settlement? Because, as I read their answer, they essentially admit they crossed a technical line. I'd compare their argument like this, although I wish I could think of a better analogy: suppose you had signed a contract with a buddy of yours that you'd paint his living room for a certain amount of money, stipulating that you were to use only organic paint. If you use regular paint, he can sue you for damages. You both sign, but then later you and he are discussing things in emails, and he tells you that if you wish to use regular latex paint, it'd be fine. So you do. He comes home a couple of times while you are painting, and again he tells you it's looking great, and the fumes from the regular paint aren't bothering him at all and go ahead and finish. Then when it comes time to get paid, he sues you instead, stating that you didn't use organic paint, and he shows the judge the contract which, sure enough, stipulates to organic paint only and damages.

Now what happens? Surely you can at least show the judge the emails and relate the conversations. Should you have amended the contract and signed the amendment? Yes, but there is a course of conduct here, and now you've not only put in the hours to paint the room, you've spent money on that paint. So there's right and wrong on both sides now. If he wanted you to use only organic paint, he should have said so before you finished the room, and he had multiple opportunities to do so. He can't argue he didn't know. And you can argue he said it was fine with him, what you were doing. Will a judge care? Yes, he very well might. That's kind of the situation here, broadly speaking. If you know someone is infringing your copyrights or your patents, and you say or indicate you don't care, you can't years later decide you do care after all. It's complex here, because Oracle is the new owner of Java. But Google points to its position prior to even owning Java, how Oracle voted to allow the various restrictions to be lifted so Google and others could do what Google did. After it bought Sun and with it Java, it did a U-turn. But now Google has spent a lot of effort and money developing its software, so now it's prejudiced by the reversal. That's its argument.

Oracle admits that, yes, Sun had field-of-use restrictions on what the GPL'd code could be used for, and yes Oracle used to agree with Apache that Sun should open that up, and yes we know that means Apache can't pass the TCK and get patent protection, and no, we are not going to change that now that we own Java, and we don't care if you admire us or not, and the bottom line is, it's our stuff now. Oracle says that there are field of use restrictions and various hoops you have to hop through if you want to be safe in using Java. Google didn't make it through all the hoops. They are infringing, as a result. That's Oracle's position.

Google responds that it had every reason to rely on Oracle not intending to enforce these patents from its course of conduct. Google believes it isn't infringing, that the patents are unenforceable and invalid. Oracle's license requirements to be able to do a clean room version of Java are an impermissible expansion of the scope of the patents, Google alleges, so Oracle is guilty of misuse "by requiring licensees to license items not covered by Oracle’s alleged intellectual property in order to receive a license to Oracle’s alleged intellectual property." So that's Google's position.

Technically, Oracle can point to the license terms. And if the court is the type to stick to the letter of the law, Google is in Oracle's sights on that issue.

Of course, Google has many other defenses along with its counterclaims, and it obviously will settle if it doesn't think it is likely to prevail, but this is where the X is on the map, I'd say, the point where Google has the weakest link in its chain, in that it has to argue to a court that yes, there are licenses, and yes, Oracle thinks we didn't follow them the way Oracle thinks we should have, and yes we didn't get the license that would allow us to use these patents, but here are the various good reasons why we shouldn't have to.

That's more of a gamble than saying, we did too jump through all the hoops to get a license, and we have a license to do what we did. It's a kind of admission. That's how I read it, in that if Google knew it had followed all the requirements to a T, it wouldn't need this misuse defense.

Here are all the hoops you have to jump through as Oracle describes them in its filing, and in doing so, it is laying out what its beef is with Google:

10. Answering Paragraph 6, Oracle admits that Sun published its copyrighted Java specifications and offered licenses to them under certain conditions. For example, in the case of the Java 2 Platform, Standard Edition, Sun permitted developers to create “clean room” implementations of Sun’s Java specifications provided that they comply with all applicable license requirements, including requirements that they (i) include a complete implementation of the current version of the specification without subsetting or supersetting; (ii) implement all the interfaces and functionality of the required packages of the Java 2 Platform, Standard Edition, as defined by Sun, without subsetting or supersetting; (iii) do not add any additional packages, classes, or interfaces to the java.* or javax.* packages or their subpackages; (iv) pass all test suites relating to the most recent published version of the specification of the Java 2 Platform, Standard Edition, that are available from Sun (the Technology Compatibility Kits) six (6) months prior to any beta release of the clean room implementation or upgrade thereto; (v) do not derive from Sun source code or binary materials; and (vi) do not include any Sun source code or binary materials without an appropriate and separate license from Sun. Google is not in compliance with these license conditions. Developers were well aware that Sun’s specification license requires compatibility testing using Sun’s TCKs, which were and are available free of charge to qualifying universities, colleges, not-for-profit organizations, and individuals (see http://java.sun.com/scholarship/). Oracle lacks sufficient knowledge or information to admit or deny the remainder of the allegations of Paragraph 6, and, on that basis, denies them.
So that's what this is all about, right there in that paragraph. It bothers me that Oracle didn't tell all that earlier, waiting to spell it out in its Reply, meaning Google doesn't get to respond, but there were other motions that maybe interfered. I'll give them the benefit of the doubt.

I don't see Oracle respond in any way to the allegation by Google about Exhibit J, that Oracle "has redacted or deleted from the materials shown in Exhibit J both expressive material and copyright headers that appear in the actual materials, which are significant elements and features of the files in question." I also don't see any broader explanation of how each patent is allegedly infringed. Google wrote that "No claim of the Patents-in-Suit can be properly construed to cover any of Google's products." And I don't see Oracle at this stage responding to that.

The big GPL-ing of the Java code, then, with all the publicity including getting Richard Stallman to join in the press event I finally understand to be basically a ruse, or a bait and switch. Well, not a bait and * switch*, but a bait and mislead the inattentive. Yes, they GPL'd some code, but you can't actually use it any way you want to. You can't use it everywhere because, like Apache, you can't pass through all the Java hoops, because Oracle won't let you.

Why use Java, I'm now asking? If this is how it is, why step into such a cage? I confess, it's a great mystery to me why people use proprietary code at all any more. The litigation that arrives on your doorstep as a package deal with the proprietary code is such a repellant, as this patent case so vividly demonstrates. People sometimes express a dislike for the GPL, because it makes them share, but which is worse, to have to share some code, or pay other people for code you are perfectly capable of coding for yourself if they hadn't patented it, or get sued up to your eyeballs every time you try to code something useful? If you look at it like that, the GPL looks pretty good to me, and I am puzzled that Google doesn't see that now that everyone has them in their litigation sights. Or maybe they do. We'll see.

As for Google's mentioning that if anybody infringed it wasn't Google and what it wrote that "Other than the Harmony libraries, the Android platform – including, without limitation, the Dalvik VM – was independently developed by the OHA," the Open Handset Alliance, Oracle provides this affirmative defense:

AFFIRMATIVE DEFENSES

Without conceding that any of the following must be pled by way of affirmative defense or that Google does not have the burden of proving the issue as part of its affirmative case, Oracle pleads the following as affirmative defenses:

FIRST AFFIRMATIVE DEFENSE (Assignor Estoppel)

Google asserts invalidity of each of the Patents-in-Suit through affirmative defenses and declaratory judgment counterclaims. Each of the inventors of the Patents-in-Suit assigned the patents to Sun (now Oracle) for good and valuable consideration. The doctrine of assignor estoppel bars Google from challenging the validity of any Patent-in-Suit naming an inventor with whom Google is in privity. Some of the named inventors joined Google and have developed software for Google. Some may in the future. Google is in privity with these inventors and is barred from asserting invalidity of their patents. For example, on information and belief, Frank Yellin, co-inventor of the ’520 patent, and Lars Bak and Robert Griesemer, co-inventors of the ’205 patent, are presently employed by Google, and Google is in privity with them with respect to those patents. Google is therefore barred from challenging the validity of the ’520 and ’205 patents by the doctrine of assignor estoppel.

In privity, as you may recall from the Novell-Microsoft WordPerfect litigation, essentially means so closely associated that they are essentially one and the same as regards the same property. Microsoft was successful in that litigation, so far, in using that concept to say that Novell and Caldera were in privity when Novell got Caldera to sue Microsoft over DR DOS, with Novell hidden in the background, and so Novell got whatever it could get via Caldera's antitrust litigation settlement and can't ask for anything more now for WordPerfect. That's on appeal, although I'm guessing the latest Novell-Microsoft patent deal may well indicate a settlement has been reached. But what Oracle is saying is based on the same principle, that the developers who got these patents now work for Google, so Google can't claim invalidity because it's in privity with the inventors. Oracle doesn't list all their patents as being in this you-can't-challenge-them category, only two.

So, here's the chart showing Oracle's answers to Google's counterclaims, remembering that both Google's Answer and Oracle's Reply include more than what is in this chart, and I used Google's paragraph numbering, but to get Oracle's just add 4 to each Google number:

# Google's Amended Counterclaims Oracle's Reply
1. A. The Java Platform and Programming Language
Upon information and belief, the Java programming language and the Java platform — a software platform that includes a runtime environment that enables programs written in the Java programming language to execute — were developed by Sun Microsystems, Inc. ("Sun") in the mid-1990s. While they are distinct elements, the term "Java" is commonly used to refer to the programming language, the runtime environment, as well as the platform.
A. The Java Platform and Programming Language
Answering Paragraph 1, Oracle admits that the Java platform includes the Java programming language and a runtime environment. Oracle admits that Sun Microsystems, Inc. (“Sun”) developed the Java platform in the 1990s. Oracle denies any remaining allegations of Paragraph 1.
2. The Java programming language was designed to use a syntax that was similar to well-known, existing object-oriented languages at the time, such as C++. Instead of compiling programs into machine-executable code that could only be run on a particular computer system, the Java platform implemented a well-known technique wherein programs written in the Java programming language were compiled into intermediate instructions called "bytecode" that could only be executed on a computer that implements a Java "virtual machine." The virtual machine, typically a program, receives the bytecode and can convert it into instructions appropriate for the particular computer upon which the virtual machine was running, and then execute those instructions on that computer. So long as there is a Java virtual machine available for a given computer system, any program compiled from the Java programming language into Java bytecode could theoretically run on the Java virtual machine for that computer. Sun's Java virtual machines implement a stack-oriented architecture, where data and parameters are loaded onto data structures in the computer's memory called "stacks," and instructions are then executed using the data and parameters from the stack. Answering Paragraph 2, Oracle admits that the Java programming language has syntax similar to C++, an existing object-oriented language. Oracle admits that the Java platform implemented a technique wherein programs written in the Java programming language can be compiled into intermediate instructions called “bytecode” to be executed on a computer that implements a Java “virtual machine.” Oracle admits that the virtual machine can be a program that receives and executes the bytecode on the particular computer upon which the virtual machine is running. Oracle admits that so long as there is a Java virtual machine available for a given computer system, any program compiled from the Java programming language into Java bytecode could theoretically run on the Java virtual machine for that computer. Oracle admits that Sun’s Java bytecode instructions are stack-oriented, which is supported by Sun’s Java virtual machines, where data and parameters can be loaded onto data structures in the computer’s memory called “stacks” and instructions can then be executed using the data and parameters from the stack. Oracle denies any remaining allegations of Paragraph 2.
3. Upon information and belief, the Java platform comprises many different components, including utilities to assist with the development of source code written in the Java programming language, a Java compiler that converts Java programming language statements to Java bytecode, a Java runtime environment consisting of Java virtual machines written to operate on a number of different computer platforms and a set of standard class libraries that can be accessed and reused by Java platform applications to perform common software functions, such as writing to files or sorting data. Answering Paragraph 3, Oracle admits that the Java platform includes many different components, including utilities to assist with the development of source code written in the Java programming language, a Java compiler that compiles Java programming language source code to Java bytecode, a Java runtime environment including Java virtual machines written to operate on a number of different computer platforms, and a set of extensive class libraries that can be accessed and reused by Java platform applications and can be used to perform software functions, such as writing to files or sorting data. Oracle denies any remaining allegations of Paragraph 3.
4. Upon information and belief, Sun developed and distributed the Java Standard Edition ("Java SE"), along with other editions of the Java platform. Each of these editions of the Java platform contain a development environment, a Java compiler, Java virtual machine, a set of standard class libraries, and documentation files describing the functionality and operation of the specific Java platform edition. Though there are many similarities between each of these editions, one of the significant differences is that each edition provides a different set of standard class libraries based on the types of applications and environment at which each edition is targeted. Answering Paragraph 4, Oracle admits that Sun developed and distributed the Java Standard Edition (“Java SE”) and other editions of the Java platform. Oracle admits that Java platform editions may typically include a development environment, a Java compiler, Java virtual machine, a set of class libraries, and documentation. Oracle admits that Java platform editions may provide a different set of class libraries based on the types of applications and environment at which an edition is targeted. Oracle denies any remaining allegations of Paragraph 4.
5. Upon information and belief, in response to the urging of open-source advocates and in the hopes of increasing the number of Java users, Sun officially announced that Java would become open-source. In 2006 and 2007, Sun released some but not all of the source code for Java SE (as well as the other editions of the Java Platform) under the terms of the GNU Public License, version 2 ("GPLv2") open source license. This open-source aspect of Java contributed to its widespread acceptance among software developers. Answering Paragraph 5, Oracle admits that Sun released some source code for Java SE and other editions in 2006 and 2007 subject to the terms of the GNU Public License, version 2 (“GPLv2”). Oracle denies any remaining allegations of Paragraph 5.
6. Upon information and belief, Sun also released the specifications for Sun's Java platform, including Sun's Java virtual machine, under a free-of-charge license that can be found at http://java.sun.com/docs/ books/jls/third_edition/html/jcopyright.html and http://java.sun.com/docs/books/ jvms/second_edition/html/Copyright.doc.html, respectively. The license allows developers to create "clean room" implementations of Sun's Java specifications. If those implementations demonstrate compatibility with the Java specification, then Sun would provide a license for any of its intellectual property needed to practice the specification, including patent rights and copyrights. One example of a "clean room" implementation of Sun's Java is Apache Harmony, developed by the Apache Software Foundation. The only way to demonstrate compatibility with the Java specification is by meeting all of the requirements of Sun's Technology Compatibility Kit ("TCK") for a particular edition of Sun's Java. Importantly, however, TCKs were only available from Sun, initially were not available as open source, were provided solely at Sun's discretion, and included several restrictions, such as additional licensing terms and fees. In essence, although developers were free to develop a competing Java virtual machine, they could not openly obtain an important component needed to freely benefit from Sun's purported open-sourcing of Java. Answering Paragraph 6, Oracle admits that Sun published its copyrighted Java specifications and offered licenses to them under certain conditions. For example, in the case of the Java 2 Platform, Standard Edition, Sun permitted developers to create “clean room” implementations of Sun’s Java specifications provided that they comply with all applicable license requirements, including requirements that they (i) include a complete implementation of the current version of the specification without subsetting or supersetting; (ii) implement all the interfaces and functionality of the required packages of the Java 2 Platform, Standard Edition, as defined by Sun, without subsetting or supersetting; (iii) do not add any additional packages, classes, or interfaces to the java.* or javax.* packages or their subpackages; (iv) pass all test suites relating to the most recent published version of the specification of the Java 2 Platform, Standard Edition, that are available from Sun (the Technology Compatibility Kits) six (6) months prior to any beta release of the clean room implementation or upgrade thereto; (v) do not derive from Sun source code or binary materials; and (vi) do not include any Sun source code or binary materials without an appropriate and separate license from Sun. Google is not in compliance with these license conditions. Developers were well aware that Sun’s specification license requires compatibility testing using Sun’s TCKs, which were and are available free of charge to qualifying universities, colleges, not-for-profit organizations, and individuals (see http://java.sun.com/scholarship/). Oracle lacks sufficient knowledge or information to admit or deny the remainder of the allegations of Paragraph 6, and, on that basis, denies them.
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. Answering Paragraph 7, Oracle admits that the Apache Software Foundation (“Apache”) requested a TCK to verify Apache Harmony’s compatibility with Java in August 2006 and that Sun included field of use restrictions in the TCK license. Oracle admits that Apache wrote an open letter in April 2007 requesting a TCK license without field of use restrictions, and that Sun declined to withdraw the field of use restrictions. Oracle denies any remaining allegations of Paragraph 7.
8. Oracle Corp., as a member (along with Google and ASF) 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. Answering Paragraph 8, Oracle admits that the Java Community ProcessSM “Executive Committee Meeting Summary for 4-5 December, 2007,” accessible via http://jcp.org/aboutJava/communityprocess/ summaries/2007/December07-summary.html, reported that “Oracle” proposed Resolution 1 as follows:
“It is the sense of the Executive Committee that the JCP become an open 2 independent vendor-neutral Standards Organization where all members participate on a level playing field with the following characteristics:
  • members fund development and management expenses
  • a legal entity with by-laws, governing body, membership, etc.
  • a new, simplified IPR Policy that permits the broadest number of implementations
  • stringent compatibility requirements
  • dedicated to promoting the Java programming model
Furthermore, the EC shall put a plan in place to make such transition as soon as practical with minimal disruption to the Java Community.”
Oracle admits that the same reported that Resolution 1 was seconded by BEA. Oracle admits that Oracle Corporation’s intent to acquire BEA Systems, Inc. was announced in October 2007 and completed in April 2008. Oracle denies any remaining allegations of Paragraph 8.
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." Answering Paragraph 9, Oracle admits that the Java Community ProcessSM “Executive Committee Meeting Minutes for 7 April, 2009,” accessible via http://jcp.org/aboutJava/communityprocess/ summaries/2009/April09-public-minutes.html, reported that:
“Following the February 2009 EC meeting, the following motion for electronic (email) voting was proposed by Apache Software Foundation and seconded by Intel Corp. “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.”
Oracle admits that the same reported that “Oracle” voted “yes.” Oracle denies any remaining allegations of Paragraph 9.
10. Only two 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. Answering Paragraph 10, Oracle admits that Oracle Corporation announced in April of 2009 that Oracle would be acquiring Sun. Oracle’s announcement is accessible via http://www.oracle.com/us/ corporate/press/018363. Oracle admits that Sun was subsequently renamed “Oracle America, Inc.” Oracle denies any remaining allegations of Paragraph 10.
11. B. The Open Handset Alliance and Development of the Android Platform
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.
B. The Open Handset Alliance and Development of the Android Platform
Answering Paragraph 11, Oracle lacks sufficient knowledge or information to admit or deny the allegations of Paragraph 11, and, on that basis, denies them.
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. Answering Paragraph 12, Oracle lacks sufficient knowledge or information to admit or deny the allegations of Paragraph 12, and, on that basis, denies them.
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. Answering Paragraph 13, Oracle lacks sufficient knowledge or information to admit or deny the allegations of Paragraph 13, and, on that basis, denies them.
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. Answering Paragraph 14, Oracle lacks sufficient knowledge or information to admit or deny the allegations of Paragraph 14, and, on that basis, denies them.
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, such as the Linux kernel patches, are made available under the GPLv2 license. Answering Paragraph 15, Oracle lacks sufficient knowledge or information to admit or deny the allegations of Paragraph 15, and, on that basis, denies them.
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. Answering Paragraph 16, Oracle lacks sufficient knowledge or information to admit or deny the allegations of Paragraph 16, and, on that basis, denies them.
17. Google does not receive any payment, fee, royalty, or other remuneration for its contributions to the Android Platform. Answering Paragraph 17, Oracle lacks sufficient knowledge or information to admit or deny the allegations of Paragraph 17, and, on that basis, denies them.
18.C. Android and the Java Programming Language
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.
C. Android and the Java Programming Language
Answering Paragraph 18, Oracle lacks sufficient knowledge or information to admit or deny the allegations of Paragraph 18, and, on that basis, denies them.
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.Answering Paragraph 19, Oracle lacks sufficient knowledge or information to admit or deny the allegations of Paragraph 19, and, on that basis, denies them.
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. Answering Paragraph 20, Oracle lacks sufficient knowledge or information to admit or deny the allegations of Paragraph 20, and, on that basis, denies them.
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." Answering Paragraph 21, Oracle lacks sufficient knowledge or information to admit or deny the allegations of Paragraph 21, and, on that basis, denies them.
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. Answering Paragraph 22, Oracle lacks sufficient knowledge or information to admit or deny the allegations of Paragraph 22, and, on that basis, denies them.
23. E. Oracle’s Amended Complaint
In its Amended Complaint, Oracle asserts that Google, by way of the Android Platform and certain of its components, infringes U.S. Reissue Patent No. RE38,104 ("the `104 reissue patent"), and U.S. Patent Nos. 5,966,702 ("the `702 patent"), 6,061,520 ("the `520 patent"), 6,125,447 ("the `447 patent"), 6,192,476 ("the `476 patent"), 6,910,205 ("the `205 patent"), and 7,426,720 ("the `720 patent") (collectively "the Patents-in-Suit"). Oracle also asserts that Google infringes and induces Android users and developers to infringe the copyrights in the works that are the subject of the copyright registrations that are attached to Oracle's Amended Complaint as Exhibit H (the "Asserted Copyrights").
E. Oracle’s Amended Complaint
Answering Paragraph 23, Oracle admits that Oracle asserts that Google infringes U.S. Reissue Patent No. RE38,104 (“the ’104 reissue patent”), and U.S. Patent Nos. 5,966,702 (“the ’702 patent”), 6,061,520 (“the ’520 patent”), 6,125,447 (“the ’447 patent”), 6,192,476 (“the ’476 patent”), 6,910,205 (“the ’205 patent”), and 7,426,720 (“the ’720 patent”) (collectively “the Patents-in-Suit”). Oracle admits that Oracle asserts that Google infringes and induces Android users and developers to infringe certain copyrights attached to Oracle’s Complaint as Exhibit H (“the Asserted Copyrights”). Oracle denies any remaining allegations of Paragraph 23.
24.Google does not infringe any valid and enforceable claim of the Patents-in-Suit, either directly or indirectly, and does not infringe any valid copyright rights of Oracle, either directly or indirectly. Answering Paragraph 24, Oracle denies the allegations of Paragraph 24.
25.Consequently, there is an actual case and controversy between the parties over the patents-in-suit. Answering Paragraph 25, Oracle admits that an actual case or controversy exists between Google and Oracle over the Patents-in-Suit. Oracle denies any remaining allegations of Paragraph 25.
26.COUNT ONE Declaratory Judgment of Non-Infringement of U.S. Reissue Patent No. RE 38,104
Google restates and incorporates by reference its allegations in paragraphs 1-25 of its Counterclaims.
COUNT ONE Declaratory Judgment of Non-Infringement of U.S. Reissue Patent No. RE 38,104
Answering Paragraph 26, Oracle incorporates by reference its responses to the allegations of Paragraphs 1 through 25 of the Counterclaims.
27.An actual case or controversy exists between Google and Oracle as to whether the `104 reissue patent is infringed by Google. Answering Paragraph 27, Oracle admits that an actual case or controversy exists between Google and Oracle as to whether the ’104 reissue patent is infringed by Google.
28.A judicial declaration is necessary and appropriate so that Google may ascertain its rights regarding the `104 reissue patent. Answering Paragraph 28, Oracle denies the allegations of Paragraph 28.
29.Google has not infringed and does not infringe, directly or indirectly, any valid 15 and enforceable claim of the `104 reissue patent. Answering Paragraph 29, Oracle denies the allegations of Paragraph 29.
30.This is an exceptional case under 35 U.S.C. § 285 because Oracle filed its Amended Complaint with knowledge of the facts stated in this Counterclaim. Answering Paragraph 30, Oracle admits that this case is exceptional and alleges that Oracle is entitled to an award of attorneys’ fees under 35 U.S.C. § 285. Oracle denies any remaining allegations of Paragraph 30.
31.COUNT TWO Declaratory Judgment of Invalidity of U.S. Reissue Patent No. RE 38,104
Google restates and incorporates by reference its allegations in paragraphs 1-30 of its Counterclaims
COUNT TWO Declaratory Judgment of Invalidity of U.S. Reissue Patent No. RE 38,104
Answering Paragraph 31, Oracle incorporates by reference its responses to the allegations of Paragraphs 1 through 30 of the Counterclaims.
32.An actual case or controversy exists between Google and Oracle as to whether the `104 reissue patent is invalid. Answering Paragraph 32, Oracle lacks sufficient knowledge or information to admit or deny the allegations of Paragraph 32, and, on that basis, denies them.
33.A judicial declaration is necessary and appropriate so that Google may ascertain its rights as to whether the `104 reissue patent is invalid. Answering Paragraph 33, Oracle denies the allegations of Paragraph 33.
34.The `104 reissue patent is invalid because it fails to meet the "conditions for patentability" of 35 USC §§ 101, 102, 103, and/or 112 because the alleged invention thereof lacks utility; is taught by, suggested by, and/or, obvious in view of, the prior art; and/or is not adequately supported by the written description of the patented invention, and no claim of the `104 reissue patent can be properly construed to cover any of Google's products. Answering Paragraph 34, Oracle denies the allegations of Paragraph 34.
35. The `104 reissue patent is invalid under 35 U.S.C. §§ 251 and 252 on the grounds that the reissue patent enlarged the scope of one or more claims of the original patent more than two years from the grant of the original patent. Answering Paragraph 35, Oracle denies the allegations of Paragraph 35.
36.This is an exceptional case under 35 U.S.C. § 285 because Oracle filed its Amended Complaint with knowledge of the facts stated in this Counterclaim. Answering Paragraph 36, Oracle admits that this case is exceptional and alleges that Oracle is entitled to an award of attorneys’ fees under 35 U.S.C. § 285. Oracle denies any remaining allegations of Paragraph 36.
37.COUNT THREE Declaratory Judgment of Non-Infringement of U.S. Patent No. 5,966,702
Google restates and incorporates by reference its allegations in paragraphs 1-36 of its Counterclaims.
COUNT THREE Declaratory Judgment of Non-Infringement of U.S. Patent No. 5,966,702
Answering Paragraph 37, Oracle incorporates by reference its responses to the allegations of Paragraphs 1 through 36 of the Counterclaims.
38.An actual case or controversy exists between Google and Oracle as to whether the `702 patent is infringed by Google. Answering Paragraph 38, Oracle admits that an actual case or controversy exists between Google and Oracle as to whether the ’702 patent is infringed by Google.
39.A judicial declaration is necessary and appropriate so that Google may ascertain its rights regarding the `702 patent. Answering Paragraph 39, Oracle denies the allegations of Paragraph 39.
40.Google has not infringed and does not infringe, directly or indirectly, any valid and enforceable claim of the `702 patent. Answering Paragraph 40, Oracle denies the allegations of Paragraph 40.
41.This is an exceptional case under 35 U.S.C. § 285 because Oracle filed its Amended Complaint with knowledge of the facts stated in this Counterclaim. Answering Paragraph 41, Oracle admits that this case is exceptional and alleges that Oracle is entitled to an award of attorneys’ fees under 35 U.S.C. § 285. Oracle denies any remaining allegations of Paragraph 41.
42.Google restates and incorporates by reference its allegations in paragraphs 1-41 of its Counterclaims. Answering Paragraph 42, Oracle incorporates by reference its responses to the allegations of Paragraphs 1 through 41 of the Counterclaims.
43.An actual case or controversy exists between Google and Oracle as to whether the `702 patent is invalid. Answering Paragraph 43, Oracle lacks sufficient knowledge or information to admit or deny the allegations of Paragraph 43, and, on that basis, denies them.
44.A judicial declaration is necessary and appropriate so that Google may ascertain its rights as to whether the `702 patent is invalid. Answering Paragraph 44, Oracle denies the allegations of Paragraph 44.
45.The `702 patent is invalid because it fails to meet the "conditions for patentability" of 35 USC §§ 101, 102, 103, and/or 112 because the alleged invention thereof lacks utility; is taught by, suggested by, and/or, obvious in view of, the prior art; and/or is not adequately supported by the written description of the patented invention, and no claim of the `702 patent can be properly construed to cover any of Google's products. Answering Paragraph 45, Oracle denies the allegations of Paragraph 45.
46.COUNT FOUR Declaratory Judgment of Invalidity of U.S. Patent No. 5,966,702
This is an exceptional case under 35 U.S.C. § 285 because Oracle filed its Amended Complaint with knowledge of the facts stated in this Counterclaim.
COUNT FOUR Declaratory Judgment of Invalidity of U.S. Patent No. 5,966,702
Answering Paragraph 46, Oracle admits that this case is exceptional and alleges that Oracle is entitled to an award of attorneys’ fees under 35 U.S.C. § 285. Oracle denies any remaining allegations of Paragraph 46.
47.COUNT FIVE Declaratory Judgment of Non-Infringement of U.S. Patent No. 6,061,520
Google restates and incorporates by reference its allegations in paragraphs 1-46 of its Counterclaims.
COUNT FIVE Declaratory Judgment of Non-Infringement of U.S. Patent No. 6,061,520
Answering Paragraph 47, Oracle incorporates by reference its responses to the allegations of Paragraphs 1 through 46 of the Counterclaims.
48.An actual case or controversy exists between Google and Oracle as to whether the `520 patent is infringed by Google. Answering Paragraph 48, Oracle admits that an actual case or controversy exists between Google and Oracle as to whether the ’520 patent is infringed by Google.
49A judicial declaration is necessary and appropriate so that Google may ascertain its rights regarding the `520 patent. Answering Paragraph 49, Oracle denies the allegations of Paragraph 49.
50.Google has not infringed and does not infringe, directly or indirectly, any valid and enforceable claim of the `520 patent. Answering Paragraph 50, Oracle denies the allegations of Paragraph 50.
51.This is an exceptional case under 35 U.S.C. § 285 because Oracle filed its Amended Complaint with knowledge of the facts stated in this Counterclaim. Answering Paragraph 51, Oracle admits that this case is exceptional and alleges that Oracle is entitled to an award of attorneys’ fees under 35 U.S.C. § 285. Oracle denies any remaining allegations of Paragraph 51.
52.COUNT SIX Declaratory Judgment of Invalidity of U.S. Patent No. 6,061,520
Google restates and incorporates by reference its allegations in paragraphs 151 of its Counterclaims.
COUNT SIX Declaratory Judgment of Invalidity of U.S. Patent No. 6,061,520
Answering Paragraph 52, Oracle incorporates by reference its responses to the allegations of Paragraphs 1 through 51 of the Counterclaims.
53.An actual case or controversy exists between Google and Oracle as to whether the `520 patent is invalid. Answering Paragraph 53, Oracle lacks sufficient knowledge or information to admit or deny the allegations of Paragraph 53, and, on that basis, denies them.
54.. A judicial declaration is necessary and appropriate so that Google may ascertain its rights as to whether the `520 patent is invalid. Answering Paragraph 54, Oracle denies the allegations of Paragraph 54.
55.The `520 patent is invalid because it fails to meet the "conditions for patentability" of 35 USC §§ 101, 102, 103, and/or 112 because the alleged invention thereof lacks utility; is taught by, suggested by, and/or, obvious in view of, the prior art; and/or is not adequately supported by the written description of the patented invention, and no claim of the `520 patent can be properly construed to cover any of Google's products. Answering Paragraph 55, Oracle denies the allegations of Paragraph 55.
56.This is an exceptional case under 35 U.S.C. § 285 because Oracle filed its Amended Complaint with knowledge of the facts stated in this Counterclaim. Answering Paragraph 56, Oracle admits that this case is exceptional and alleges that Oracle is entitled to an award of attorneys’ fees under 35 U.S.C. § 285. Oracle denies any remaining allegations of Paragraph 56.
57.COUNT SEVEN Declaratory Judgment of Non-Infringement of U.S. Patent No. 6,125,447
Google restates and incorporates by reference its allegations in paragraphs 1-56 of its Counterclaims.
COUNT SEVEN Declaratory Judgment of Non-Infringement of U.S. Patent No. 6,125,447
Answering Paragraph 57, Oracle incorporates by reference its responses to the allegations of Paragraphs 1 through 56 of the Counterclaims.
58.An actual case or controversy exists between Google and Oracle as to whether the `447 patent is infringed by Google. Answering Paragraph 58, Oracle admits that an actual case or controversy exists between Google and Oracle as to whether the ’447 patent is infringed by Google.
59.A judicial declaration is necessary and appropriate so that Google may ascertain its rights regarding the `447 patent. Answering Paragraph 59, Oracle denies the allegations of Paragraph 59.
60.Google has not infringed and does not infringe, directly or indirectly, any valid and enforceable claim of the `447 patentAnswering Paragraph 60, Oracle denies the allegations of Paragraph 60.
61.This is an exceptional case under 35 U.S.C. § 285 because Oracle filed its Amended Complaint with knowledge of the facts stated in this Counterclaim. Answering Paragraph 61, Oracle admits that this case is exceptional and alleges that Oracle is entitled to an award of attorneys’ fees under 35 U.S.C. § 285. Oracle denies any remaining allegations of Paragraph 61.
62.COUNT EIGHT Declaratory Judgment of Invalidity of U.S. Patent No. 6,125,447
Google restates and incorporates by reference its allegations in paragraphs 1-61 of its Counterclaims.
COUNT EIGHT Declaratory Judgment of Invalidity of U.S. Patent No. 6,125,447
Answering Paragraph 62, Oracle incorporates by reference its responses to the allegations of Paragraphs 1 through 61 of the Counterclaims.
63.An actual case or controversy exists between Google and Oracle as to whether the `447 patent is invalid. Answering Paragraph 63, Oracle lacks sufficient knowledge or information to admit or deny the allegations of Paragraph 63, and, on that basis, denies them.
64.A judicial declaration is necessary and appropriate so that Google may ascertain its rights as to whether the `447 patent is invalid. Answering Paragraph 64, Oracle denies the allegations of Paragraph 64.
65.The `447 patent is invalid because it fails to meet the "conditions for patentability" of 35 USC §§ 101, 102, 103, and/or 112 because the alleged invention thereof lacks utility; is taught by, suggested by, and/or, obvious in view of, the prior art; and/or is not adequately supported by the written description of the patented invention, and no claim of the `447 patent can be properly construed to cover any of Google's products. Answering Paragraph 65, Oracle denies the allegations of Paragraph 65.
66.This is an exceptional case under 35 U.S.C. § 285 because Oracle filed its Amended Complaint with knowledge of the facts stated in this Counterclaim. Answering Paragraph 66, Oracle admits that this case is exceptional and alleges that Oracle is entitled to an award of attorneys’ fees under 35 U.S.C. § 285. Oracle denies any remaining allegations of Paragraph 66.
67.COUNT NINE Declaratory Judgment of Non-Infringement of U.S. Patent No. 6,192,476
Google restates and incorporates by reference its allegations in paragraphs 1-66 of its Counterclaims.
COUNT NINE Declaratory Judgment of Non-Infringement of U.S. Patent No. 6,192,476
Answering Paragraph 67, Oracle incorporates by reference its responses to the allegations of Paragraphs 1 through 66 of the Counterclaims.
68.An actual case or controversy exists between Google and Oracle as to whether the `476 patent is infringed by Google. Answering Paragraph 68, Oracle admits that an actual case or controversy exists between Google and Oracle as to whether the ’476 patent is infringed by Google.
69.A judicial declaration is necessary and appropriate so that Google may ascertain its rights regarding the `476 patent. Answering Paragraph 69, Oracle denies the allegations of Paragraph 69.
70.Google has not infringed and does not infringe, directly or indirectly, any valid and enforceable claim of the `476 patent. Answering Paragraph 70, Oracle denies the allegations of Paragraph 70.
71.This is an exceptional case under 35 U.S.C. § 285 because Oracle filed its Amended Complaint with knowledge of the facts stated in this Counterclaim. Answering Paragraph 71, Oracle admits that this case is exceptional and alleges that Oracle is entitled to an award of attorneys’ fees under 35 U.S.C. § 285. Oracle denies any remaining allegations of Paragraph 71.
72.COUNT TEN Declaratory Judgment of Invalidity of U.S. Patent No. 6,192,476
Google restates and incorporates by reference its allegations in paragraphs 171 of its Counterclaims.
COUNT TEN Declaratory Judgment of Invalidity of U.S. Patent No. 6,192,476
Answering Paragraph 72, Oracle incorporates by reference its responses to the allegations of Paragraphs 1 through 71 of the Counterclaims.
73.An actual case or controversy exists between Google and Oracle as to whether the `476 patent is invalid. Answering Paragraph 73, Oracle lacks sufficient knowledge or information to admit or deny the allegations of Paragraph 73, and, on that basis, denies them.
74.A judicial declaration is necessary and appropriate so that Google may ascertain its rights as to whether the `476 patent is invalid. Answering Paragraph 74, Oracle denies the allegations of Paragraph 74.
75.The `476 patent is invalid because it fails to meet the "conditions for patentability" of 35 USC §§ 101, 102, 103, and/or 112 because the alleged invention thereof lacks utility; is taught by, suggested by, and/or, obvious in view of, the prior art; and/or is not adequately supported by the written description of the patented invention, and no claim of the `476 patent can be properly construed to cover any of Google's products. Answering Paragraph 75, Oracle denies the allegations of Paragraph 75.
76.This is an exceptional case under 35 U.S.C. § 285 because Oracle filed its Amended Complaint with knowledge of the facts stated in this Counterclaim. Answering Paragraph 76, Oracle admits that this case is exceptional and alleges that Oracle is entitled to an award of attorneys’ fees under 35 U.S.C. § 285. Oracle denies any remaining allegations of Paragraph 76.
77.COUNT ELEVEN Declaratory Judgment of Non-Infringement of U.S. Patent No. 6,910,205
Google restates and incorporates by reference its allegations in paragraphs 1-76 of its Counterclaims.
COUNT ELEVEN Declaratory Judgment of Non-Infringement of U.S. Patent No. 6,910,205
Answering Paragraph 77, Oracle incorporates by reference its responses to the allegations of Paragraphs 1 through 76 of the Counterclaims.
78.An actual case or controversy exists between Google and Oracle as to whether the `205 patent is infringed by Google. Answering Paragraph 78, Oracle admits that an actual case or controversy exists between Google and Oracle as to whether the ’205 patent is infringed by Google.
79.A judicial declaration is necessary and appropriate so that Google may ascertain its rights regarding the `205 patent. Answering Paragraph 79, Oracle denies the allegations of Paragraph 79.
80.Google has not infringed and does not infringe, directly or indirectly, any valid and enforceable claim of the `205 patent. Answering Paragraph 80, Oracle denies the allegations of Paragraph 80.
81.This is an exceptional case under 35 U.S.C. § 285 because Oracle filed its Amended Complaint with knowledge of the facts stated in this Counterclaim.Answering Paragraph 81, Oracle admits that this case is exceptional and alleges that Oracle is entitled to an award of attorneys’ fees under 35 U.S.C. § 285. Oracle denies any remaining allegations of Paragraph 81.
82.COUNT TWELVE Declaratory Judgment of Invalidity of U.S. Patent No. 6,910,205
Google restates and incorporates by reference its allegations in paragraphs 181 of its Counterclaims.
COUNT TWELVE Declaratory Judgment of Invalidity of U.S. Patent No. 6,910,205
Answering Paragraph 82, Oracle incorporates by reference its responses to the allegations of Paragraphs 1 through 81 of the Counterclaims.
83.An actual case or controversy exists between Google and Oracle as to whether the `205 patent is invalid. Answering Paragraph 83, Oracle lacks sufficient knowledge or information to admit or deny the allegations of Paragraph 83, and, on that basis, denies them.
84.A judicial declaration is necessary and appropriate so that Google may ascertain its rights as to whether the `205 patent is invalid. Answering Paragraph 84, Oracle denies the allegations of Paragraph 84.
85.The `205 patent is invalid because it fails to meet the "conditions for patentability" of 35 USC §§ 101, 102, 103, and/or 112 because the alleged invention thereof lacks utility; is taught by, suggested by, and/or, obvious in view of, the prior art; and/or is not adequately supported by the written description of the patented invention, and no claim of the `205 patent can be properly construed to cover any of Google's products. Answering Paragraph 85, Oracle denies the allegations of Paragraph 85.
86.This is an exceptional case under 35 U.S.C. § 285 because Oracle filed its Amended Complaint with knowledge of the facts stated in this Counterclaim. Answering Paragraph 86, Oracle admits that this case is exceptional and alleges that Oracle is entitled to an award of attorneys’ fees under 35 U.S.C. § 285. Oracle denies any remaining allegations of Paragraph 86.
87.COUNT THIRTEEN Declaratory Judgment of Non-Infringement of U.S. Patent No. 7,426,720
Google restates and incorporates by reference its allegations in paragraphs 1-86 of its Counterclaims.
COUNT THIRTEEN Declaratory Judgment of Non-Infringement of U.S. Patent No. 7,426,720
Answering Paragraph 87, Oracle incorporates by reference its responses to the allegations of Paragraphs 1 through 86 of the Counterclaims.
88.An actual case or controversy exists between Google and Oracle as to whether the `720 patent is infringed by Google. Answering Paragraph 88, Oracle admits that an actual case or controversy exists between Google and Oracle as to whether the ’720 patent is infringed by Google.
89.A judicial declaration is necessary and appropriate so that Google may ascertain its rights regarding the `720 patent. Answering Paragraph 89, Oracle denies the allegations of Paragraph 89.
90.Google has not infringed and does not infringe, directly or indirectly, any valid and enforceable claim of the `720 patent. Answering Paragraph 90, Oracle denies the allegations of Paragraph 90.
91.This is an exceptional case under 35 U.S.C. § 285 because Oracle filed its Amended Complaint with knowledge of the facts stated in this Counterclaim. Answering Paragraph 91, Oracle admits that this case is exceptional and alleges that Oracle is entitled to an award of attorneys’ fees under 35 U.S.C. § 285. Oracle denies any remaining allegations of Paragraph 91.
92.COUNT FOURTEEN Declaratory Judgment of Invalidity of U.S. Patent No. 7,426,720
Google restates and incorporates by reference its allegations in paragraphs 191 of its Counterclaims.
COUNT FOURTEEN Declaratory Judgment of Invalidity of U.S. Patent No. 7,426,720
Answering Paragraph 92, Oracle incorporates by reference its responses to the allegations of Paragraphs 1 through 91 of the Counterclaims.
93.An actual case or controversy exists between Google and Oracle as to whether the `720 patent is invalid. Answering Paragraph 93, Oracle lacks sufficient knowledge or information to admit or deny the allegations of Paragraph 93, and, on that basis, denies them.
94.A judicial declaration is necessary and appropriate so that Google may ascertain its rights as to whether the `720 patent is invalid. Answering Paragraph 94, Oracle denies the allegations of Paragraph 94.
95.The `720 patent is invalid because it fails to meet the "conditions for patentability" of 35 USC §§ 101, 102, 103, and/or 112 because the alleged invention thereof lacks utility; is taught by, suggested by, and/or, obvious in view of, the prior art; and/or is not adequately supported by the written description of the patented invention, and no claim of the `720 patent can be properly construed to cover any of Google's products. Answering Paragraph 95, Oracle denies the allegations of Paragraph 95.
96.This is an exceptional case under 35 U.S.C. § 285 because Oracle filed its Amended Complaint with knowledge of the facts stated in this Counterclaim. Answering Paragraph 96, Oracle admits that this case is exceptional and alleges that Oracle is entitled to an award of attorneys’ fees under 35 U.S.C. § 285. Oracle denies any remaining allegations of Paragraph 96.
97.COUNT FIFTEEN Declaratory Judgment of Non-Infringement of the Asserted Copyrights
Google restates and incorporates by reference its allegations in paragraphs 1-96 of its Counterclaims.
COUNT FIFTEEN Declaratory Judgment of Non-Infringement of the Asserted Copyrights
Answering Paragraph 97, Oracle incorporates by reference its responses to the allegations of Paragraphs 1 through 96 of the Counterclaims.
98.An actual case or controversy exists between Google and Oracle as to whether the Asserted Copyrights are infringed by Google. Answering Paragraph 98, Oracle admits that an actual case or controversy exists between Google and Oracle as to whether the Asserted Copyrights are infringed by Google.
99.A judicial declaration is necessary and appropriate so that Google may ascertain its rights regarding the Asserted Copyrights.Answering Paragraph 99, Oracle denies the allegations of Paragraph 99.
100Google has not infringed and does not infringe, directly or indirectly, the Asserted Copyrights.Answering Paragraph 100, Oracle denies the allegations of Paragraph 100.


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