Everyone knows that Oracle is suing Google over claims that Google used Sun's Java technology without appropriate licenses in the Android mobile OS. Now that Oracle owns Sun's technology, it wants to be paid for those licenses.
Google claims Android does not use actual Java intellectual property and that the claims are baseless. That's all fine, the stuff of usual Silicon Valley licensing battles. But what's not fine is what's in the small print of Oracle's actual lawsuit. What Oracle is saying and doing should scare everyone.
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For example, one of Oracle's attorneys is David Boies. We know that name from the recent action that overturned the gay marriage ban in California and from the old DOJ antitrust actions against Microsoft. He also advised the Recording Industry Association of America in its file-sharing case against Napster and represented former vice president Al Gore in the disputed 2004 U.S. election results. Nobody hires David Boies to litigate unless they are serious.
There are the seven alleged counts of patent infringement, and all are about software process patents, a controversial type of patent that I believe never should been granted in the first place:
- Protection Domains to Provide Security in a Computer System (2000)
- Controlling Access to a Resource (2000)
- Method and Apparatus for Preprocessing and Packaging Class Files (1999)
- System and Method for Dynamic Preloading of Classes through Memory Space Cloning of a Master Runtime System Process (2008)
- Method and Apparatus for Resolving Data References in Generate Code (2003)
- Interpreting Functions Utilizing a Hybrid of Virtual and Native Machine Instructions (2005)
- Method and System for Performing Static Initialization (2000)
It was my hope that the recent Bilski ruling would have invalidated all software process patents at one stroke, but the U.S. Supreme Court chose not to go that far. But think about these claims: Does any one of them sound novel for their time? (Being nonobvious -- or novel -- is a basic requirement of gaining a patent, and one way of gauging that is whether there is prior art or previous products and services that work the same way.) Yes, I know that the U.S. Patent and Trademark Office approved them, but was anyone who knew about the prior art and what was obvious to an average practitioner in software engineering paying attention at the time?
There is also a count of copyright infringement. I think that is likely to be dismissed early in the proceedings, if the Android team did (as reported) a clean-room reverse-engineering of the Java virtual machine to create the Dalvik VM underlying Android -- and can offer proof. Phoenix Technologies managed that trick with the IBM PC BIOS, so it's quite possible that Google did as well with Java.
Oracle's drastic damage claims are for show
This is basically saber-rattling. Oracle might as well add "and a pony." No court will ever grant all of that, not even at a jury trial in the Northern District of California. Oracle couldn't even get that kind of relief from the notorious East Texas court.
In the event that Oracle prevails, some fraction of what it asks might be granted. But an appeal by Google in that event is a complete certainty, and the court would most likely delay any injunctive relief pending the outcome of the appeal.
Should Google win on appeal, Oracle would then have the option of appealing to the Supreme Court. However, if it goes that far, there is a significant possibility that the Supreme Court would decide to invalidate all software process patents -- which would be a very good outcome. That possibility alone might be enough to stop Oracle from taking the case all the way.
How Google might settle the case
But settling may cause more damage to the industry, even if it helps Google. If Google were to settle out of court for cash, that would open the door for Oracle to go after HTC, Motorola, Samsung, other device manufacturers, Verizon Wireless, T-Mobile, other carriers, and eventually all large companies known to use Android devices. That would be a disaster for the entire mobile industry.
It might be OK if Google were to settle out of court through a perpetual cross-licensing agreement with Oracle. In that case, I hope that Google would also indemnify all Android licensees and users against future action as part of the settlement.
Some of my colleagues have called for open source developers to immediately fork any Sun-derived open source projects, to make them less susceptible to Oracle infringment claims. But I'm not sure that goes far enough to do any good.
Fight "the man" where it hurts!
Think about it: Oracle database licensees could move to IBM DB2 or Microsoft SQL Server. MySQL users could move to Monty Widenius' fork of MySQL or to Postgres. Oracle Forms and Oracle Web Forms users could move to Alpha Five. Oracle ERP users could move to offerings from SAP, Microsoft, or Sage. There's more, but you get the idea.
Are you ready to vote with your wallet?
This story, "Oracle's Android lawsuit: A Pandora's box of serious evils," was originally published at InfoWorld.com. Get the first word on important tech news with the InfoWorld Tech Watch blog.