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Oracle v. Google - The '720 Patent In Play In Reexam
Tuesday, August 09 2011 @ 09:00 AM EDT

You will recall that Oracle filed a response to the Office Action issued by the U.S. Patent and Trademark Office in the reexamination of U.S. Patent No. 7,426,720 (Case No. 95/001,560). At the end of that article we stated:

What will be interesting is whether any of the subsequent prior art that Google has now brought to the attention of the court will have an impact on this or the other reexaminations. By Google filing those further documents with the court, Oracle is now under an obligation to assure that the examiner in each of the reexaminations is aware of those documents, as well, even if Google does not file them with the USPTO.

Well, we don't have to speculate any longer about those documents being provided to the USPTO, at least with respect to the '720 patent. Google has provided them.

In a response filed by Google to Oracle's response to the Office Action, Google has now laid out its side of the countering arguments to Oracle's response with supporting cases. Here are the key points raised by Google:

  • But for the addition of a "copy-on-write" limitation added after a final rejection during the original examination, the patent would never have been granted. So the "copy-on-write" limitation is critical to any view of the patent claims, and it is this feature that was supposed to be novel.
  • "Copy-on-write" was well known in the art long before the '720 patent came along (the '720 application was filed December 22, 2003), a point which Oracle has admitted. To quote Google:

    ". . . the copy-on-write technology central to alleged novelty of the '720 patent was present in most Unix operating systems as early as 1994, an was widely-known in the art at least as early as 1988; and 3) Patent Owner now admits that Bach discloses the purportedly novel feature."
    Given the typical pace of development in information technology, "copy-on-write" was ancient history at the time Oracle (Sun) claimed it to be novel.
  • Oracle's response was nothing but "shuck-and-jive", intended to distract the USPTO from the real issue.

Google proceeds to rip apart each of the Oracle arguments, providing substantial detail to support Google's position. In conclusion, Google asks the USPTO to make its Office Action final because of Oracle's failure to adequately refute the position taken by the examiner.

Anyone feeling the sand shift beneath Oracle's feet?

[N.B. - In deference to our readers who have asked not to be exposed to specifics of the various patents at issue, I have not reproduced Google's response as text. However, I am willing to do so should you wish. In the meantime, I encourage those of you with an understanding of operating systems and virtual machines to read the Google response. It is quite thorough.]


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