Google Bowls a Googly

One of the most shocking aspects of Oracle's lawsuit against Google alleging patent and copyright infringement was its unexpected nature. The assumption had been that Google was a big company with lots of lawyers and engineers, and had...

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One of the most shocking aspects of Oracle's lawsuit against Google alleging patent and copyright infringement was its unexpected nature. The assumption had been that Google was a big company with lots of lawyers and engineers, and had presumably checked out everything before proceeding with the Android project. And then suddenly it looked as if it had made the kind of elementary mistakes a newbie startup might commit.

So it comes as something of a relief (from the viewpoint of the open source community, at least) to find Google at last beginning to reveal how it intends to fight Oracle's accusations. Its approach turns out to be relatively simple, if bold:

Each of the Patents-in-Suit is invalid under 35 U.S.C. § 101 because one or more claims are directed to abstract ideas or other non-statutory subject matter.

Groklaw has the details, as well as preliminary analysis:

Google also says Oracle's Exhibit J [PDF] attached to its amended complaint, Oracle's side-by-side comparison of Java (J2SE) and "Android versions of PolicyNodeImpl.java" that seemed to establish copying, isn't accurate, in 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." Wow and double wow. If that proves true, it reminds me of the 300 lines of code "proof" from SCO in the SCO v. IBM case, when IBM showed the judge at a hearing that Sandeep Gupta's exhibit to a declaration he'd filed for SCO had "juxtaposed" code in such a way as to "give the appearance of similarity when, in fact, no similarity exists."

But there's more. Lots more, including a defense of misuse, alleging that Oracle, and Sun before it, has "impermissibly expand[ed] the scope of the Patents-in-Suit 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."

Its post concludes:

Wouldn't it be ironic if Oracle's patents ended up on the junk heap? Clearly that is Google's intention. I've been hoping for a settlement of this mess from day one. I smell that it is now a real possibility. You can take this amended answer two ways — that it's Google angling for a better settlement or that it's Google looking to win the whole enchilada and free up Java for everyone.

That's certainly the kind of approach I would like to see Google taking: to aim not just to get rid of an annoying lawsuit, but to obtain something much more valuable as a result – invalidating Oracle's patents, for example. If that seems optimistic – IANAL, so I don't have any insights into the details of the law or the case here – remember that if nothing else, Google does have a lot of clever people whose job is to think through this stuff. If they have, then it's quite possible that something dramatic like patents being challenged in this way could be an eventual result; and if they haven't, then Google has far bigger problems than a lawsuit from Oracle....

Follow me @glynmoody on Twitter or identi.ca.

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