Now that I have read your comment, of course!
Judge Alsup ordered that
'For the reasons stated, Google’s defenses of implied license and
waiver are rejected on
the merits and Google’s defenses of equitable estoppel
and laches are denied as moot'.
His arguments are very clear. 'An
implied license requires a finding of an affirmative grant of consent or
permission.
Though rare, consent can be inferred from a course of conduct
between parties'.
I do think he is mistaken in citing the licence
negotiations as arguing against this as he points out elsewhere in his order
that Google were not using the Java trademark and were not claiming Java
compatibility. That is what the negotiations were about; the Java trademark and
the full Java platform, not just the API Specification.
However, the
blog, press statements and the statements at the conferences and exhibitions do
not add up to an 'affirmative grant of consent' (although I think they come
very, very close).
To prevail on a waiver defense, Google must show
by a preponderance of the evidence
that Oracle and/or Sun, with full knowledge
of the material facts, intentionally relinquished
its rights to enforce the
rights it now asserts. Waiver of a known right must be “manifested
by some overt
act indicating an intention to abandon that right.” Micro Star v. Formgen,
Inc.,
This is impossible for Google to win. The rights that Oracle
now assert were not considered by Sun to be rights that they had at the
time Google did the API declaration copying. It was impossible for Sun to
intentionally relinquish rights that it never thought it might
have.
I assume that 'Google’s defenses of equitable estoppel and laches
are denied as moot' because, if the court API decision is reversed, the appeal
court could find that the Sun rapturous applause would be a good foundation for
those defences.
---
Regards
Ian Al
Software Patents: It's the disclosed functions in the patent, stupid! [ Reply to This | Parent | # ]
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