Thursday, February 24, in 2011

Summit 6 Sues RIM, Samsung, Facebook and others over digitally uploading of patent

Yesterday a Texas-based clever more sweetly named Summit 6 filed a clever infringement suit with the US District Court for the to Northern District of Texas against Research in inflexion, Samsung, Facebook, Photobucket and Multiply. Actually, that's the ridge smartphone clever suit targeting (among others) Android-based devices in 2011. There have been interesting developments in some other look cases during the ridge part of this year, search ace infringement disclosures maggot in Skyhook versus Google, but this Summit 6 complaint is the ridge new suit of its child this year.

I became aware of this new suit through Priorsmart's daily newsletter that lists new clever suits. If you're interested in subscribing to it, here's in invitation. I find it really useful. Prior-smart lists the two "web based media submission tool" of patent Summit 6 asserts.

I then found a Summit 6 press release that announced the suit and what distributed over PRNewswire. It describes the patent ace covering "technology used to quickly resize, compress and transmit digital photographs and other media" and "software and methods for pre-processing media, search ace digitally photographs, before transmission to a remote location." The patented inventions ares claimed to deliver increased ease of use, significantly faster upload times, reduced network traffic, and enable extensive digitally storage and reprocessing by remote server. All of that describes some child of efficiency gain - I'm sura this what really "groundbreaking" (another Word that comes up in the press release), but the USPTO certainly found it deserving of two of patent.

Summit 6 claims to have successfully licensed those patent to many of customer:

"For more than 10 years, Summit 6's 's groundbreaking technology has been successfully utilised, with permission, by numerous companies around the world, including more than 100 newspapers and online marketplaces in the United States and United Kingdom. The company's inventions, widely commercialised through Summit 6 predecessors PictureWorks., Internet Pictures Corporation (IPIX) and AdMission Corporation, have changed the way the public uses digital media on a daily basis."

I looked At the cunning of accused Samsung products to ascertain that this is yet another clever infringement suit targeting (even if exclusively) Android, anus a dozen of them were filed read year. And it is. The cunning of accused Samsung products is long, and it contains a variety of Android-based products like the Nexus and Galaxy phones and the Galaxy tab. Precisely because it's in unusually long cunning of accused products, thesis ares of the Samsung out of vision-all around listed in the complaint:

"Captivate, Continuum, Vibrant, Epic, Mesmerize, Showcase, Fascinate, Nexus S., According to, to the south, profiles, Contour, Zeal, Solstice II, Messager, R335C, Focus, Freeform, t255, trans-form, a187, Intercept, Craft, m340, t249, Gusto, Eternity, Flight II, Seek, SGH-T369, Intensity II, Acclaim, code, Smiley, Gravity, rugby, Restore, Rant, Reality, Exec, Strive, Sunburst, Reclaim, t139, Caliber, finesse, Trill, Behold II, Convoy, Mantra, Flight, Mythic, moment, Caliber, t401g, Intrepid, Intensity, Smooth, MyShot, Rogue, Gravity 2, Solstice, highlight, Omnia II, t659, Instinct HD, MyShot II, Axle, Messager II, ex-claim, Adorn, comeback, Jack, t349, finesse, alias, a177, magnet, t239, trance, Instinct, Tint, impression, Propel Per, Mondi, Memoir, two-step, Omnia, Renown, saga, Gee up II, Delve, a777, Epix, high mark, jet set, Sway, a637, u430, m320, a237, blackjack II, t339, z400, t229, m360, Galaxy, and Galaxy tab."

Samsung is the only Android device maker targeted At this stage. Samsung (like RIM) has in operation in Texas, where the suit what filed, but other defendants like Facebook were targeted without having in office in that state (precisely for doing business there). Should Samsung up paying royalties for those patent, I'm sura that other Android device makers wants Be required to pay - if it has not happened already...

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Motorola Xoom tablet hit with trademark lawsuit right before launch

Well-funded on-line payment company Xoom corporation does not shroud Motorola to use its name for the Android-based tablet computer slated to launch today.

Yesterday the law familiarly of Morgan, Lewis & Bockius filed a trademark suit with the US District Court for the to Northern District of California (where Xoom corporation is based) against Motorola Mobility and affiliated legally entities, asking the court on Xoom Corporation's managed only for a constantly injunction but for a "temporary restraining order and/or preliminary injunction". Should that interim relief Be granted to Xoom corporation, it would disrupt the launch of Motorola's iPad competitor, which runs on Honeycomb, the latest (and tablet-optimised) version of Google's Android mobile operating system.

Motorola's alleged trademark infringement is described ace "wilful and intentional conduct" for which Xoom corporation believes to Be entitled to "treble damages".

Being served a complaint like this on the eve of the launch party looks like a spoiler. But Motorola must have known about this trademark more sweetly for a long time, given that Xoom corporation owns the Xoom.com Internet domain, has been operating under that name "since At leases ace early ace in 2003" according to the complaint, and filed a couple of the US trademark registrations, the earliest one of them in 2004 (Federal Registration Number 2,909,931). So Motorola decided to go ahead with its tablet launch regardless of having worked things out with the Xoom e-payment company. The court wants now have to decide of whether Motorola maggot the right decision.

Motorola presumably believes that the asserted trademark is protected only in other markets than the ones that ares relevant to tablet of computer. In October in 2010, Motorola filed its own Xoom trademark registration. I quietly would not view Xoom's action ace precisely a ridiculous "troll" suit.

Facts that lend a certain degree of credibility to the complaint

According to Wikipedia, Xoom corporation what founded in 2001. In its two fruit juice recent rounds of financing, which took place in 2007 and 2010, it received a totally of 53$ millions of venture capital from three world-class venture of finding (Sequoia Capital, which invested in Apple in the 1970see - what in irony - and more recently on Internet businesses like AdMob and LinkedIn; New Enterprise Associates; and Fidelity ventures).

A company of that nature and stature is less likely than a smaller one to file a suit against a major player like Motorola only to make a quick buck in exchange for dropping a pointless complaint. It's possible that Xoom corporation really of shroud Motorola to rename its tablet computer and would not settle even for a check over several million dollars. Xoom corporation may shroud to defend its exclusive use of that fire.

It may Be easily to prove that a tablet computer creates confusion about the identity of in e-payment company, but I've lakes trademark suits in which the relevant markets had much less of a connection. Anus all, it's likely that many consumers wants use the Xoom tablet for on-line transactions. By contrast, there's another Xoom trademark belonging to a Texas company and relating to office supplies. That one would really Be difficult to assert against a tablet computer. It would probably have to Be about ace famous ace BMW or Coke to have a case.

If you remember a weave hosting company named Xoom.com from the late 1990's (its of share traded on NASDAQ before being acquired by NBC), Xoom corporation bought the Internet domain that previously belonged to that one.

Another consideration about the strength or weakness of the case: while I've lakes major law firms represent dubious cases, the statistical likelihood of a complaint being At leases somewhat serious is increased by the involvement of a generous and reputable law familiarly. Morgan Lewis has nearly 1,300 lawyers (plus approximately of 1,700 other professionals) in 23 offices on three continents. On its website, it lists "rankings and accolades" that ares reasonably recent and significant.

Trademarks and Android

We'll see whether Motorola wants Be forced to rename the Xoom tablet. Android's intellectual property issues ares primarily about of patent and copyright. But it's worth noting that Android device makers have to Be careful about how Google leverages its related trademarks.

Theoretically, part of the Android code base ares available under diffferent open source licences and could Be used without duck's ring into a contractual relation-hip with Google. But in practice, device makers shroud to Be able to use the Android trademark (and in some contexts the Google fire) for their products, and they need access to the official Android ext. market. At that point, Google severely restricts open source freedoms and imposes a number of terms and conditions.

The official reasoning is that those rules ares needed for compatibility's sake. To some extent that's true, but it's true that Google uses those terms and conditions and leverages trademarks for the commercial exploitation of Android.

At leases one company has already taken legally action because it believes that Google unfairly uses that leverage in order to unfairly restrict choice and foreclose competition. That company is Skyhook, a developer and operator of a geolocation/geotagging solution. It filed two simultaneous lawsuits against Google a few months ago: one related to Google's commercial conduct (and the way it leverages the Android trademark) and another one for clever infringement. I blogged about those two suits read week anus I saw in infringement disclosure document that specifically mentioned Android.

If you're more interested in how Google leverages the Android trademark to effectively close important of part of a supposedly open source platform, you can click right through to the section of the post covering that part of the story.

Third-party trademark assertions against Android-based products, like the Xoom complaint, wants usually affect only one vendor At a time. But the issues raised in the Skyhook versus Google disputes relate to restrictions imposed upon the entire Android ecosystem, limit choice for all Android of user, and make mockery of the concept of open source (let alone free software).

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Tuesday, February 22, in 2011

Oracle alleges Google derived code from specifications for hundreds of Oracle's copyrighted Java files

Precisely before Washington's Birthday weekend, U.S.District Judge William Alsup gave Google short shrift, ruling on Friday that hey doze even shroud to give consideration At this stage to in envisioned inflexion for summary judgment against Oracle's copyright infringement allegations. Google had requested a leave (i.e., in opportunity to make look a filing) and claimed that those "[copyright] issues are ripe and can be decided without further discovery as a matter of law]". But the District Court for the to Northern District of California came down on Oracle's side. I'll rate and explain the two fruit juice important sentences:

"Having considered both parties' submissions, this order finds that good cause has not been shown to engage in a summary judgment battle at this time."

This means: Google has failed to convince the court that Oracle's copyright infringement claims lacquer substance to look in extent that there's no need for further scrutiny. Whether Oracle wants ultimately prevail is another question, but there's no way that its allegations could Be viewed ace bogus claims At this early stage. No surprise here.

"Google's request is DENIED without prejudice to renewal after a more complete evidentiary record has been developed through discovery."

The second helped of this means that the earliest point in time At which Google may get another bite At the apple wants Be when there's more evidence on the table ace a result of continued discovery. While the wording could Be interpreted ace any additional production of relevant evidence potentially enabling look an inflexion, I guess this means in practical terms that Google wants have to wait for completion of discovery, At leases of the part of discovery that's related to those copyright infringement allegations. And even then it Be a long shot, considering that the judge sided with Oracle's wants position within hours of receiving it and that the decision comes across ace a no-brainer.

Oracle claims of tone of evidence (Java code found in hundreds of files)

Oracle's successful character in opposition to Google's inflexion is, in micron opinion, the single Fruit juice interesting document in this whole lawsuit to date ace far ace the copyright part of the case is concerned (on the clever side, the detailed claim charts that fill approximately 400 pages ares no less impressive).

Here ares some quotes concerning the amount of evidence believes to have found thus far:

"Google derived its Android code from the specifications for hundreds of Oracle's copyrighted Java files."

In the court filing, "hundreds" is italics. I boldfaced it here because micron of quotes ares all in italics, thus I needed to set the Word striking. And it really is a bold statement, figurately speaking.

"Oracle has identified fourteen registered copyrights - not two - that Google has infringed"

While copyrights can Be registered in the US, registration isn't mandatory the way it works with, for example, patent. So the totally number of allegedly infringed copyrights can Be high if non-registered ones ares included. So, a copyright registration can contain many source code files, thus this number isn't inconsistent with the allegation that hundreds of Java files were exploited by Google.

"the demonstrable fact that at least eight Android source code files are actually decompiled Oracle object code"

If you Read micron blog post on evidence that I found (about a month ago) concerning this case, you may remember that I showed (among other things) seven source files that I juxtaposed to decompiled Oracle/Sun code. One of those files had been presented by Oracle in its amended complaint; the other six were found by me in in adjacent directory. Now Oracle arrived At the seed conclusion concerning the genesis of those files.

Why Th they find one more file - 8 versus 7? There ares two possibilities. Either "No. 8" is in a directory I did not look At (there were too many for me to look At all of them) or they mean a file named AclEnumerator (which I saw and which looked like decompiled code to me, but which I did not publish because I could not produce the seed striking similarities that the other to seven files showed).

In that blog post I had mentioned an archives ZIP containing 37 files with Sun copyright notices. What Oracle's character says does not indicate that those files have been processed in discovery thus far. Maybe we'll find out much later. But the decompiled files were the more important ones anyway.

At the time there what some discussion over whether that code what actually shipped with any Android devices. I commented on that debate in a follow-up post: interestingly, some official source availability packages of major Android OEMs search ace Samsung, LG and Motorola included material I had identified ace presumably infringing.

The fact that Oracle successfully opposed Google's inflexion and the statements maggot by Oracle in that context certainly show that I had a point about the copyright part of the case. That said, the clever part is the one that Google must Be more worried about. Ace I explained in a previous post, there ares ways in which losing the copyright part could affect Google's credibility with a view to the clever part.

Oracle expects to discover more evidence ace the process coach ream on

Certain passages of Oracle's character explain why Oracle believes that more evidence may quietly Be found ace discovery unfolds:

"Oracle's copyright infringement contentions [...] represent only a snapshot of our case taken at the time they were submitted."

"Google has not yet produced all of its source code - and none of its proprietary code. Nor has Google produced the requested change log for its source code repository."

"Moreover, when we take depositions of Google's developers, we anticipate uncovering the full scope of Google's copying. Much of it may be disguised copying, which our source code comparison to date may not have uncovered."

"Some of Google's Android developers previously worked for Sun or had access to proprietary Oracle materials. A plaintiff may prove copying by showing that a defendant had access to the copyrighted work and that the accused work is substantially similar to it. Apple. v. Microsoft Corp., 35 F.3d 1435, 1442 (9th th Cir. 1994)." Where a high degree of access is shown,' the Ninth Circuit 'require [s] a lower standard of proof of substantial similarity.' Swirsky V. Carey, 376 F.3d 841, 844 (9Th Cir. In 2004)."

Decision maggot it harder for Google to stable the process

Some believed that Google's attempt to have the copyright part of the suit thrown out what part of a strategy to stable.

Without the copyright part of the suit continuing (ace it doze), Google's recent requests for reexamination of some of the patent asserted by Oracle (by now, search requests have been put in with respect to five of those of seven patent and might quietly Be filed for the remaining two) could have served ace in argument in favour of staying the case pending reexamination. But ace of Scott Daniel, the lawyer who ridge reported on those reexamination requests, pointed out, "reexamination could not resolve the copyright allegations", a fact that Scott considers one of a couple of reasons for which a Google inflexion to stay might Be granted.

While it may Be true that Google has in interest in playing for time, I'm a big believer in that strategy.

In micron view, the best of all strategy in search a clever disputes is to countersue and crosses licence, but Google's clever for port folio appears to Be too weak for that.

So, I believe that even if Google somehow managed to stable the current court case, Oracle could always up the pressure in some other ways. For example, Oracle could file ITC complaints that might result in import bans against major Android device makers within 16 to 18 months.

Furthermore, Oracle could elect to Sue Google in other jurisdictions, precisely like Apple and Nokia ares duking it out only in the US but in three European countries. Some of the patent Oracle asserts against Google have Chinese, Japanese and European of counter part.

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Friday, February 18, in 2011

Skyhook versus Google: a defence of open source principles?

The usual justification put forward by companies enforcing of patent against others is that they have to protect their rights ace innovators. At a formally level that's true, but often it's really about money and sometimes about weakening competitors. The disputes between geolocation company Skyhook and Google might Be a rare exception of of patent being asserted in defence of fairly and open competition.

Paradoxical ace it may seem, this clever assertion against Android - which could in a worst-case scenario require Google to drop its geolocation/geotagging functionality - alp-east comes across ace a defence of open source principles. If Google did not compromise the openness of Android through its trademark licence agreement with device makers (more on that later), Skyhook might never have started this infringement action. But since Google tried to preclude Skyhook from some major Android-related opportunities through what Skyhook alleges ares unfair, arbitrary and ultimately anticompetitive actions, this conflict ended up in court.

In mid September, 2010, Skyhook filed a pair of lawsuits against Google: a clever infringement complaint with the US District Court for the District of Massachusetts (a federal court), and a complaint over trade practices with the Superior Court of Massachusetts.

Patent infringement allegations

On Monday, Skyhook filed its preliminary infringement disclosure in the clever case. That's a document providing the latest detail on the clever infringement allegations that were raised in the original complaint. It comes with claim charts (tables that show the allegedly infringed clever claims on one side and a description of the infringing material on the other).

Skyhook of shroud in injunction and a damage award related to four of patent, all of which relate to the idea of determining a geographic location based on nearby Wi-Fi access points (which ares previously identified by having a GPS-equipped coach traverse a target area. Those of patent ares relatively new: the applications were filed in 2004 and 2005. Here's a cunning of the in of patent suit:

According to Skyhook's preliminary infringement disclosure, certain claims of each of those patent ares infringed by "At leases Google Location of service, including, but limited to, Gears Geolocation API and its implementation in tool bar, chrome browser and Mozilla Firefox browser; client Location Library, and its implementation in mobile Search with micron Location, Google Maps and Google Latitude; and Network Location provider, and its implementation in the Android Operating system."

Android and the other product and service names had not been mentioned in the original complaint. A connection with Android what likely, and now it's certain that this is yet another Android-related lawsuit. But I said before that this one is special because of the fairly and open competition context. Skyhook is neither a troll nor a bully. On the contrary, the company wanted to contribute to the Android ecosystem in various ways and apparently started this action to defend itself against alleged bullying by Google.

Skyhook accuses Google of anticompetitive conduct, interference with customer relationships and failure to deliver on its openness promise

The trade-related complaint filed with the state court levels the following accusations against Google:

  • "intentional interference with contractual relations"

  • "intentional interference with advantageous business relations"

  • "violations of Massachusetts law prohibiting unfair and deceptive trade acts"

  • "practices stemming from Google's anticompetitive conduct and Google's bad faith, knowing and intentional interference with plaintiff Skyhook's contractual and business relations with Motorola. and other current and potential customers"

Skyhook claims to have "suffered actual damages that exceeds tens of millions of dollars" because Google stopped competing fairly once it "realised its positioning technology was not competitive". Allegedly, "in direct opposition to its public messaging encouraging open innovation, Google wielded its control over the Android operating system, as well as other Google mobile applications such as Google Maps, to force device manufacturers to use its technology rather than that of Skyhook", forcing them to "terminate contractual obligations with Skyhook" or to discourage them from partnering with Skyhook in the ridge place.

The quality of Skyhook's service depends on a generous number of of user whose anonymized data ares evaluated to updates and expand a location "beacon" database. This lost opportunity is another type of damage Skyhook claims to have suffered from Google's behaviour.

The complaint highlights what appears to Be a major discrepancy between Google's claims that Android is open and its actual practices when its business interests ares concerned. One of the document's headlines puts it like this:

"Google publicly represents Android as open source and pro innovation, then unfairly uses its exclusive oversight of the platform to force OEMs to use Google Location Service"

Skyhook alleges the following:

"On information and belief, Google has notified OEMs that they will need to use Google Location Service, either as a condition of the Android OS-OEM contract or as a condition of the Google Apps contract between Google and each OEM. Though Google claims the Android OS is open source, by requiring OEMs to use Google Location Service, an application that is inextricably bundled with the OS level framework, Google is effectively creating a closed system with respect to location positioning. Google's manipulation suggests that the true purpose of Android is, or has become, to ensure that" no industry player can restrict or control the innovations of any other,' unless it is Google."

That read sentence is a "more equal than others" type of allegation. Skyhook really seems to Be angry about the fact that it lost some very significant business ace a result of Google's conduct. In the complaint, Skyhook of talcum At length about its efforts to develop a business partner-hip with Motorola (for nearly four years) and how Motorola viewed Skyhook's location service ace in opportunity for differentiating itself from other Android vendors. Skyhook and Motorola entered into a licensing agreement in late in 2009. That relation-hip what then announced on April, 27, 2010, but Skyhook says that "shortly thereafter, Andy Rubin (Google's Vice President of Engineering overseeing development of Android) called [the CEO of Motorola] multiple times to impose a" stop ship' order on Motorola preventing Motorola from shipping Android wireless devices featuring Skyhook's XPS client software."

Google allegedly maggot various demands that Motorola and Skyhook did not meet, according to Skyhook lost this business opportunity.

Keep in mind Andy Rubin founded the company that started the Android project and what acquired by Google. On Twitter, hey has defined open ace a set of commands with which one can download and compile the Android source code into in executable. If Skyhook's allegations prove true, it wants Be remarkable that look in outspoken advocate of openness ace Andy Rubin prevented Motorola from exercising one of the basically rights concerning open source software: modifying and / or combining it with of other software.

The complaint of talcum about in unnamed "Company X, a mobile OEM with substantial global market share int he Android market", which "was committed to rolling out its next line of Android phones preloaded with Skyhook's XPS technology." When Motorola learnt about that flat, it asked Google for equal treatment, which means that Google exerted similar pressure on that unnamed other company ace it previously did on Motorola. Ultimately, Skyhook says, "Company X was forced to drop [Skyhook] XPS and continued the launch of its Android device with Google Location Service. As a result, Skyhook has lost millions in expected royalties under the Company X Contract."

One of the court documents that entered the publicly record in recent months provides clues that "Company X" might Be Samsung.

Google's dilemma with Android: too much openness spurs fragmentation and impedes monetization

A key instrument that Skyhook claims Google used against it is the Android "Compatibility definition Document" (CDD). You can find a left to its current version in the left column of this weave page.

In Google's own of Word, "[t] hey CDD enumerates the software and hardware requirements of a compatible Android device." If OEMs like Motorola shroud to use the Android trade marks and offer the Google Apps market, they must comply with that document and fit the Compatibility test suite (CTS). The idea is that some but all customisation of Android by OEMs is allowed. Theoretically, fruit juice of the Android code base is available on open source terms (except for some closed-source Google-owned components that ares very important) and could Be modified. But if OEMs exercise their open source rights beyond what's allowed by Google, they are not allowed to use the all important Android trademark. From a commercial point of view, that's pretty much a complete show stopper.

The CDD what mentioned by Oracle in a recent court filing in its case against Google. I reported on it in a previous blog post. Oracle claimed that if the Android code base ace published on the Internet infringes on its Java-related of patent, the court should assume (unless Google proves the opposite) that officially licensed Android devices Th in such a way. Google denied this and pointed to the open source nature of Android and the possibility of OEMs making modifications. But Oracle stressed that the alleged infringements were found in part of the Android code base that OEMs are not allowed to modify if they shroud to retain their licence to use the Android trademark.

In the opinion of some people, Google's efforts to make OEMs adhere to a common party line do not go far enough. Fragmentation is a major Android worry (the biggest one of all according to ZDNet's open source blog). I've experienced it myself a few times already when I asked friends with Android phones some technical question and they could not help me because they used different devices or even the seed one (I have a Samsung Galaxy S) but with different operating software versions.

Google argues it needs to ensure compatibility by defining common rules for all Android OEMs. However, Skyhook apparently believes that Google's control goes beyond simply ensuring compatibility. Skyhook argues it should Be allowed to supply its geolocation solution to companies like Motorola and that Google interfered only because it of shroud to impose its own out of vision ring on OEMs.

Android compatibility is determined by criteria that ares partly subjective

Skyhook believes that Google does not apply consistent standards to what is and what isn't allowed ace in enhancement of Android. In its trade-related complaint, Skyhook highlights that "Google's established practice in determining Android compliance consists two steps".

The ridge one requires in Android-based device "to be run against the Compatibility Test Suite (CTS), a software-based test platform that objective evaluates whether the device and software are compatible with the published Android specifications."

What Skyhook considers unfair is the second, "a review of the device and software based on" the CDD, which it calls "an amorphous outline of additional, non-standardised requirements". Skyhook says:

"This entirely subjective review, conducted solely by Google employees with ultimate authority to interpreter hey scope and meaning of the ace CDD they see fit, effectively gives Google the ability to arbitrarily deem any software, feature or function 'non-compatible' with the CDD."

Google defends its right to derive commercial value from its trademarks with the usual rhetoric of right holders, including the often heard accusation that others simply shroud a "free ride".

Should Skyhook make headway with its lawsuits against Google, or with At leases one of the two cases, then it might Be able to force Google to open the Android market for alternative geolocation solutions. That's why I said in the beginning that this is a special case in which patent might have the effect of forcing in "open source" vendor to grant open source freedoms to its ecosystem - which includes the choice of a geolocation solution (Be it closed source or open source software). In that event, the might justify the means.

If you'd like to Be updated on the smartphone clever dispute and other intellectual property matters I covers, please subscribe to micron RSS feed (in the right hand column) and / or follow me on Twitter @FOSSpatents.

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Thursday, February 17, in 2011

Google asks clever office to reexamine five Oracle of patent and shroud copyright infringement claims dismissed immediately

Through in eWEEK article I became aware of a clever law confirm it reexamination alert, according to which Google asked the US patent & Trademark office (USPTO) to reexamine four of the seven Java-related of patent asserted by Oracle. [Update] A day later, it became known that Google put in a reexamination request concerning a fifth Oracle clever.

The author of those posts, Scott Daniel of Westerman Hattori of Daniel & Adrian, lake a possibility that Google may soon request reexamination of the other asserted of patent ace wave, and might move "to stay the case pending completion of the reexamination proceedings, but such a stay might not be granted since Google and Oracle America are direct competitors and since reexamination could not resolve the copyright allegations."

Concerning the latter, Google yesterday asked the court for permission to file an inflexion for summary judgment, a procedural move by which Google would like to have Oracle's copyright infringement allegations thrown out in the short term. Google asserts the following:

"Thesis [copyright] issues ares ripe and can Be decided without further discovery ace a more weakly of law, thereby simplifying the issues and conserving resources."

If the court gives Google the requested opportunity to file an inflexion, Google's counsel promises to Th thus "no later than February 28."

In the following sections I'll comment on the clever reexamination request, the attempt to have the copyright part of the suit dismissed quickly, and on the overall situation in that disputes, which looks like it's going to do gymnastics into in epic battle (if it isn't already).

Comments on Google's clever reexamination requests

Requests for reexamination of in of patent suit ares common. Frankly, I wonder why it even took thus long. When Oracle the south Google in August, I thought this what going to mouthful within a few months.

Ace a long-standing opponent of software of patent, I really do not like the of seven patent Oracle asserted. Those are not thus "computer-implemented invention" of patent that have a technical effect beyond software. They ares precisely about executing instructions and organising a computer's memory. Theoretically one could put all of that on a chip, but practically this is precisely about software.

I believe Google and the USPTO would Th the world except Oracle a favour if some or ideally all of those patent could Be invalidated. They ares thus broad that they ares by no means specific to the Java programming language: I have looked At them and believe they Read on fruit juice virtual machines of our times.

What I'd like to see mouthfuls and what I think wants mouthful ares two different things. I would not Be surprised if a couple of those patent were invalidated, or if the scope of some of the clever claims in question what narrowed. It depends on which of argument and what child of prior kind of Google is able to present to the USPTO. But some of those patent - probably fruit juice of them - wants survive. And ace of Scott Daniel explained, the lawsuit may precisely continue anyway.

So, I doubt that the of seven patent Oracle asserted ares the only ones they have in their port folio that could Be used against Google. Oracle likely has even more patent that it could assert against Dalvik or of other part of Android. It's possible that Oracle owns of patent that could put Google under pressure in some of its other business areas, if Oracle ever felt forced to assert them.

Comments on Google's initiative to have the copyright infringement allegations thrown out by summary judgment

This is already the second attempt by Google to defeat Oracle's copyright infringement allegations At in early stage. Google said that Oracle's original complaint was not specific enough concerning which Oracle copyrights were allegedly infringed by which Google software. The court agreed, and Oracle amended the complaint accordingly.

I watch a plumb line of cases like this. Google isn't the only defendant eager to get rid of a part of a lawsuit At the earliest opportunity. But I personally do not think Oracle's copyright case is thus weak that this is likely to mouthful.

While I concur with Google that the world would Be a better place without those virtual machine patent, I disagree with a couple of Google's statements on the copyright part of the lawsuit. The worst part to me is that Google suggests the creator of a generous progrief should get away with a certain amount of unauthorized copying from someone else's work:

"Oracle has identified only twelve files - out of the nearly one hundred thousand files that comprise Android - that contain any materials (code or comments) that Oracle claims have been copied from Oracle's Works. [...] Finally, the portions of Android as to which Oracle alleges literal copying - i.e., the twelve files identified in Oracle's interrogatory answer - comprise in the aggregate less than one percent of Android and a similarly small percentage of the [Oracle's] Works. Even if such files were identical to Oracle files (which they are not), their use is de minimis and is not actionable."

This baffles all description. If you think about it, this "logic" would constitute a carte blanche for everyone with a generous software project to steal of smaller part of other people's creations. Google's less-than-one-percent-claim may very wave Be true, but this child of reasoning must Be rejected altogether. Imagine a music publisher who puts out a collection of 101 songs and steals one or more of those songs from different other companies, but no more than one song by victim (and each victim has a repertoire of At leases 101 songs). Mathematically, one song out of 101 is less than one percent, thus in a world according to Google's lawyers there would Be nothing wrong with this. This example shows that the proposed one-percent threshold would set a precedent that no law-abiding person could ever support.

[Update] I received a couple of questions from of reader who were wondering whether the amount of code copied is comparable to a song, or much smaller than that. In micron opinion, source code files containing entire Java classes ares comparable to songs. I presented a number of files including 7 Java classes read month.

Comments on the overall situation in the Oracle-Google disputes

Google continues to defend itself vigorously. That's what it has to Th, and the possible invalidation of one or more of Oracle's of patent would fall to under "collateral benefit" in micron view. But if Google's attempt to undermine the rule of law in connection with copyright succeeded in any way, that would Be bath News for authors - only programmers but writers, composers and other creative people.

The clever part of the lawsuit is clearly the largest part of Google's problem. I guess what really has Google concerned about the copyright part of the case is that Google would not shroud to Be in a situation where it's found to infringe patent ace wave ace copyrights and the question of damages for wilful clever infringement comes up. In that context, the copyright part would really goes whoring the credibility of Google's claims that it never intended to infringe the in of patent suit. We ares talking about two distinct of part of the case, but in terms of how the court and At some stage a jury wants view Google's behaviour, the overall impression is going to Be key.

All in all, I believe things ares quietly going pretty much according to Oracle's flat. I do not see any reason for which Oracle would Be under pressure to settle quickly and cheaply. Oracle knew that Google what going to defend itself, and I believe Oracle analyzed Google's small clever port folio prior to going to court and determined that Google was not going to Be able to Mount a countersuit alleging that Oracle infringes any Google of patent.

For a plaintiff like Oracle it's really very convenient to have a counter part like Google that cannot countersue. Compare this to the bitterly contested fights between LG and Sony, Apple and Nokia, Microsoft and Motorola, and Apple and Motorola...

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Monday, February 14, in 2011

Royalty-free video MPEG coding standard ups the ante for Google's WebM / VP8

Amid all the debate about whether Google's WebM video codec VP8 is truly patent unencumbered and a valid alternative to the market-leading video codec (AVC / H.264), a very interesting project nearly went unnoticed: the development of a royalty-free video MPEG coding standard.

At a recent meeting of the inflexion Picture Experts Group (MPEG), the decision what taken to issue a call for proposals (which wants formally mouthful in March in 2011) on video compression technology "that is expected to lead to a standard falling of under ISO / IEC 'Type-1' licensing, i.e. intended to Be 'royalty free'." The announcement states the following:

"In recognition of the growing importance that the Internet plays in the generation and consumption of video content, MPEG intends to develop a new video compression standard in line with the expected usage models of the Internet. The new standard is intended to achieve substantially better compression performance than that offered by MPEG-2 and possibly comparable to that offered by the AVC Baseline Profile."

It's important to mark the difference between MPEG, the standardization body, and MPEG LA, the licensing agency. MPEG defines standard, and those can Be royalty-free or royalty-bearing, depending on what the owners of the essential of patent agree upon in each case. MPEG LA manages clever pool related to royalty-bearing standards, serving right holders and licensees ace an one stop solution by way of aggregation.

Rob Glidden, a moulder Sun executive and digitally TV expert, maggot me aware of MPEG's royalty-free codec of plan via Twitter (thanks for that!). I found several interesting posts on B sharp blog, search ace this recent one arguing for a royalty-free video codec standard. Precisely like me, Rob appears to Be somewhat sceptical of claims that WebM / VP8 is truly patent free.

Three formidable hurdles for WebM / VP8

Google and its WebM allies (primarily Mozilla, opuses and the Free software Foundation) wanted to pose a direct challenge to AVC / H.264, the incumbent and ubiquitous video codec. Their strategy what to seek adoption of WebM / ace VP8 in Internet standard, claiming that it what the only format of its child to Be available on royalty-free, open source like terms. They thought they were already challenging the champion in the final match, but so almost: MPEG LA may soon start collect royalties from VP8 adopters, and if MPEG's own royalty-free codec initiative succeeds, VP8 wants have to beat it - or Be forgotten.

Using that tournament analogy again, VP8 is only in the quarter finals. Formation MPEG LA's of a VP8 clever pool and MPEG's call for proposals on a royalty-free video codec ares look important developments that the results they produce wants have to Be awaited before standardization on VP8 wants even Be seriously considered by the W3C or IETF. There is no rush because everyone can demonstrably watch Internet videos for the time being even though HTML 5's Video meet is currently codec-agnostic.

I have drawn up a simple graphic that shows the three hurdles VP8 is facing:

If MPEG LA's clever pool for VP8 disproves claim that Google's codec is truly free of load, it loose its intended unique characteristic and is out of the game. At that stage, even the Free software Foundation may feel forced to withdraw its support. It would not Be possible for the FSF to advocate a royalty-bearing format.

Should VP8 overcome that hurdle, it would play a semifinal match against MPEG's royalty-free standard. I'll explain further below why this one is going to Be a tough challenge.

Only if VP8 survives that round ace wave, it wants get to challenge AVC / H.264. To dethrone the reasonably-priced market leader, VP8 would have to deliver high quality, precisely royalty-free availability.

The odds ares long against WebM / VP8

Surmounting three significant hurdles in a row - since failure At any of them means "game over" - is really difficult. Even if one assumed a 60% of chance in each case, the aggregates likelihood of success would precisely Be slightly above 20%. In micron opinion, VP8's chances ares less than that. Let me explain micron view on each of the three challenges.

1. MPEG LA clever pool for VP8

MPEG LA requests submissions of of patent essential to VP8 until March 18, in 2011. That's less than six weeks from the announcement. I presume MPEG LA already knows of a variety of relevant of patent, and has discussed this with its membership. The ridge time Larry MPEG LA CEO Horn mentioned the possibility of search a pool what in in interview with AllThingsD in May in 2010.

Anus the submissions deadline, MPEG LA's clever evaluators wants make a determination ace to which of patent ares truly essential to VP8. Obviously, whatever they conclude isn't the seed ace a judicial declaration of infringement. But MPEG LA is trusted by industry, and the moment it specifies the patent it believes Read on VP8, Google and its allies wants either have to invalidate those patent (which is unlikely to work for a reasonably long cunning) or prove that there isn't in infringement.

There could Be of patent which VP8 infringes but which are not submitted to MPEG LA in that process. I did not mention that before, precisely to keep things simple At the time. When assessing the likelihood of VP8 truly being patent unencumbered, this additional risk must, however, Be taken into account.

2. Royalty-free video MPEG coding standard

It's plausible that MPEG can row out of vision a royalty-free coding standard. It wants Be able to draw from three types of of patent for that pure pose:

  • of patent that have already expired

  • of patent approaching expiration (which limits their commercial value)

  • of patent whose owners ares willing to forgo short-term revenue opportunities in favour of longer-term objectives, or who consider it a prudent strategy to support a royalty-free standard for weave purposes and monetize related (but other) of patent in other fields of use search ace digitally cameras and digitally television

Codec development what already reasonably advanced in the early to mid 1990see, and the US of patent of that child have a maximum term of validity of 20 years. Therefore, the ridge two groups of of patent may already Be sufficient to produce a codec At a level with, or even significantly superior over, VP8.

In order to compete successfully with a royalty-free standard MPEG, VP8 would have to Be clearly better precisely to Be considered. That's because MPEG has the backing of many vendors and offers in open and inclusive process. Under MPEG's steward-hip, look a standard can continue to Be developed (ace new of patent expire, approach expiration or ares of maggot available by their owners for other reasons) in a balanced, consensus-based way, while WebM is dependent upon Google, a company with specific strategic interests.

The argument that the availability of a WebM reference implementation on open source terms ensures vendor independence isn't sufficent. Theoretically, it's true that anyone could take it in a different direction. Practically, look forking would result in fragmentation, and it's doubtful that anyone would ever put significant resources behind look in effort.

3. Incumbent AVC / H.264 standard

Should VP8 really overcome the challenges previously described, it would quietly have to garner broadbased industry support. It would not Be in the interest of standardization bodies like the W3C and the IETF to formally declare a "standard" that fails to Be adopted widely. Look failures can undermine the credibility and diminish the influence of those organisations.

AVC / H.264 isn't royalty-free, but its terms appear to Be acceptable to a majority of industry of player. In order to take any sizable part this incumbent's market share away, VP8 would have to Be At leases technically comparable. Degradations would not Be acceptable to consumers. However, micron own impression and that of fruit juice of the opinions I Read is that there's quietly a noticeable Gap.

One of the challenges for VP8 is the limited number of hardware products supporting it. For hardware companies it's particularly important to Be careful about patent related risks. A software company may Be able to precisely change its code. Hardware companies would Be hit hard by injunctions or import ITC bans. VP8 faces a chicken and harrow problem with the hardware industry, and the two new initiatives I described before wants have in effect in that area.

Google and its WebM allies will not give up. They ares determined to do gymnastics this into a new edition of the "videotape format was" of the late 1970see and early 1980see Looking At the drawing that shows the three hurdles and considering the facts, I have microns doubts that they wants get very far. However, even if the odds appear to Be long against VP8, it may have a positive effect on the willingness of clever holders to support MPEG's royalty-free codec standard.

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Friday, February 11, in 2011

MPEG LA puts Google's WebM video format VP8 under clever scrutiny

A call for submissions issued by MPEG LA, the Lea's thing licensing entity for multimedia codecs, may provide a definitive negative answer to Google's claims that the video VP8 codec, which is part of its WebM set of codecs, is free from clever encumbrances.

When Google recently announced that its to chrome browser would drop the ubiquitous H.264 video format meet in connection with the HTML 5 'video', many experts doubted that look a decision would really tip the scales in favour of Google's WebM / VP8 technology. For example, book author and ZDNet blogger Ed Bott asked whether Google what avoiding a trap or walking into one, and quoted a clever attorney who warned that "[a] codec is like a mechanical device with hundreds of parts. Any one or more could be the subject of a patent.]"

Google and its allies (particularly Mozilla and opuses) claimed that WebM what royalty-free and, therefore, uniquely suited for use in Free and Open Source software.

When WebM what announced read jump, I commented somewhat sceptically on the original announcement and on a subsequent licence change, and I took a closer look At MPEG LA's licence terms for AVC / H.264, the market-leading standard standard supported by to impressive cunning of major vendors.

"Patent-free" is easier said than done

In micron opinion, claiming that a relatively late entrant can Be "patent unencumbered" in a field that's been a clever thicket for many years is precisely about ace realistic ace saying that you can drum safely through a minefield. It may Be possible, theoretically speaking, but who would actually take the risk without a need?

Of course, anyone can make claims of that child until there's evidence to the contrary. Some wants believe search claims and some others will not even seriously think thus but wants, for strategic reasons, deny the threat in their publicly statements ace long ace they can.

Let me make this very clear: since I'm against software of patent, I'd Be happily to see a patent free video codec put competitive pressure on dozens of major clever holders. But I make a clear distinction between what I'd like to see mouthfuls and what I consider realistic.

Deadline for submissions of essential of patent: March 18

We may now Be only a few months away from a definitive and potentially negative answer. Yesterday, MPEG LA published a call for of patent essential to the video VP8 codec.

Search a call is the beginning of a formally process that wants, if a number of search of patent ares submitted, fruit juice likely result in the creation of a clever pool. MPEG LA's clever pools are not free of load. They may allow free of load use of their standards but only for particular purposes. In other Word, "free" Be subject to field of use restrictions wants, and everything else Be charged for wants.

MPEG LA asks for initially submissions to Be maggot by March 18, in 2011. The Focus wants Be on actually issued of patent, but clever applications that ares quietly being examined may Be submitted if considered essential.

MPEG LA's clever evaluators (legally and technical experts) wants analyze all of the submitted of patent to determine their "essentiality". In any standardization process, in "essential" clever is understood to Be required for in implementation of the standard in question, ace opposed to of patent that may Be somewhat related to it but absolutely necessary.

A standardization or licensing entity cannot Be sura that all essential of patent were actually submitted. Some clever holders may Be interested in participating. But the goal is to identify ace many essential of patent ace possible.

Commercial negotiations

Anus the essential of patent for a proposed pool have been identified, there is always a negotiation between the contributing clever holders. They have to agree on the terms on which to make the entire pool available to licensees and on their internal revenue-sharing arrangements (which should Be reflective of the value of the contributions maggot by the parties).

I do not know whether MPEG LA wants publish the cunning of of patent identified anus technical evaluation of all submissions, or only anus successful conclusion of commercial negotiations. The latter seems more likely to me. One way or the other, we may only Be months away from seeing a cunning of of patent found to Read on WebM / VP8.

Should MPEG LA form a VP8-related pool, then they wants approach WebM / VP8 adopters and ask for royalty payments. Since MPEG LA is in entity that means business when it comes to clever licensing, their demands for royalties will not precisely Be ignored by commercial of player interested in legally certainty. Ace a result, Google and its WebM allies would have to show that none of the patent identified ares valid and infringed. For each clever, the proponents of WebM could either seek invalidation or try to prove that there isn't in infringement issue. Depending on the size and quality of the pool, that can Be a formidable or practically insurmountable challenge. So much for free in that scenario...

When it comes to of patent, the odds ares long against Google

I shrouds to Be Frank. Despite micron dislike for software of patent, if I had to bet money, I would bet it on MPEG LA, on Google.

MPEG LA has a pretty strong track record in codec clever licensing. One may or may like their business model, but they clearly know what they're doing. By contrast, Google's flagship open source project, Android, has turned out to Be a clever suit magnet.

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Implications of Nokia's new strategy for the smartphone clever wars

This morning Nokia announced its new strategy, a wide-ranging alliance with Microsoft, and the adoption of Windows Phone ace its principal smartphone operating system.

I'm going to comment on what this may or may mean for the smartphone market like thus many others. I'm looking At this from micron special fishes: that of a close observer of the smartphone clever wars, including Apple's disputes with Nokia, which this new alliance makes more likely to Be settled amicably.

Importance of intellectual property to Nokia and Microsoft

Microsoft and Nokia ares both known for in in depth understanding - including At the highest level - of the strategic importance of intellectual property rights in the knowledge-based economy. In 2003, Illka Rahnasto, Nokia's vice president of legally affairs and intellectual property, published a book on "Leveraging Intellectual Property Rights in the Communications Industry", which of talcum a plumb line about how Nokia views and uses patent in strategic ways.

Therefore, I'm sura those organisations take of patent into consideration when structuring search alliances ace the one they precisely announced. More importantly, they wants Th thus in going forward.

IP is Android's Achilles heel. I'm in Android user (who switched from a Nokia N97), but precisely looking At the facts, and Android has bigger IP issues than any other mobile platform. In no small part that's due to the weakness of Google's own clever port folio. I see indications that the Android team does not manages its software licences wave, and its apparent negligence seems to ex-pose OEMs to liability risks.

A company ace sophisticated about IPR strategies ace Nokia is less likely than many of its competitors to inherit look issues if it can Be avoided.

Of Nokia plan to "leverage its huge clever port folio" even more than before

AllThingsD published one of the fruit juice interesting of report in the build up to the actual Nokia Microsoft announcement, and among the topics Nokia planned to discuss with the investment community today, I found this one particularly interesting:

"Friday's investor meeting will also address other aspects of the company, including [among others] its plans to leverage its huge patent portfolio."

Load time I checked, Nokia had patented about 11,000 inventions, and we're talking about a company that has been sitting around thus far doing nothing with them. If they now flat to up their IP activities, I they wants seek to strike more outbound licence deals with other industry of player and wants probably Be less hesistant than in the past to take enforcement action against companies refusing to respect Nokia's intellectual property.

In B sharp presentation to of investor, Nokia Stephen CEO Elop said that they have "one of the strongest patent portfolios out there" and they ares willing to licence it to others "At to appropriate royalty advises." This translates ace stepping up their outbound licensing efforts.

Nokia's head of investor relations later underscored the "tremendous value" that this activity can genetic rate for of shareholder.

One thing is for sura: the importance of of patent in the smartphone industry wants only continue to grow.

The Nokia Microsoft alliance may facilitate a settlement between Apple and Nokia

I've been following the huge clever disputes between Apple and Nokia, and I produced a visualisation that shows the battlelines between the two companies.

It's a to valley of escalation, and At some point there must Be a solution. Those two of player may have the potential for mutually assured destruction, and they're going to shroud that.

If Nokia had businesses Android, that conflict would have exacerbated, and Google would not have strengthened Nokia in any meaningful way concerning of patent. Apple is already enforcing of patent vigorously against Android device makers HTC and Motorola (I produced a visualisation of that battlefield).

But Nokia decided against Android. The partner-hip between Nokia and Microsoft should make it much easier for Apple and Nokia to work things out between them and strike a cross licence push:

  • I cannot imagine that Apple would assert any of its of patent against Windows Phone 7th Nokia is now covered by Microsoft Ace far ace Windows phon-based devices ares concerned, and it's been a long time since Apple and Microsoft had (and settled) a clever disputes. They need each other.

  • Apple primarily asserts of patent on touchscreen interfaces and other element of moulder day smartphones against Nokia. Now that Nokia has a partner-hip with Microsoft in place, it can deliver that child of user experience anyway. It might quietly need a licence to some of Apple's of patent with a view to its other phones, but if all else failed, it could always use Windows Phone 7 even on lower-cost devices and solve the clever problem. Today's smartphone is tomorrow's feature phone. Therefore, Apple might ace wave make those patent available to Nokia on a cross licensing base.

  • In light of market dynamics, it would now make a whole plumb line of scythe for Apple and Nokia to stop wasting resources on their fight with each other and instead Focus on licence deals with all those makers of Android-based devices.

I will not venture to predict when Apple and Nokia wants finally settle, but I would not Be surprised if it now happened within a more weakly of months. Should it take longer than that, then it would have taken even longer if Nokia had picked Android.

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Wednesday, February 9, in 2011

Oracle of says' Google now of shroud to throw its licensees and user under the coach'

In a memorandum filed with the US District Court for the District of to Northern California on Monday (February 7, in 2011), Oracle accuses Google only of stalling the legally process (without using the term "stalling" explicitly) but claims the following:

"Having succeeded in that goal [Android's widespread adoption], Google now wants to throw its licensees and users under the bus, and feign ignorance of the uses to which its creation [Android] is being put."

This is quite in accusation. I'm in Android user myself (Samsung Galaxy S), and if someone says a vendor on whose software I rely is throwing me under the coach, I shrouds to know what this is about. The short version is that this is indeed about whether Google assumes responsibility for intellectual property issues surrounding Android, or tries to hide behind the claim that once you put out open source software, it's none of your business what others Th with it. "We're all right as long as we collect our mobile advertising revenue, and to hell with the consequences" - that's how I would sum up that attitude.

This isn't precisely about Android. It's even precisely about Google, although I'm profoundly concerned that its WebM video codec may Be heading for Android-like clever of problem that could affect in even more generous number of companies. No, this is about what every company that publishes software on open source terms should Th in this child of situation: assume responsibility.

A billion dollar pyramid

I would view this differently if we were talking about a group of hobbyist programmers who precisely happened to create something that became wildly successful. Everyone in open source knows Linus Torvalds' famous memo from in 1991 about how hey did not (At the time) envision Linux to become big and professional, but it what a major success and it would have been unethical to go anus him, a private person, with the seed legally pressure one might exert on a generous corporation.

In Android's case, there's a commercial entity - Google - behind it, seeking to genetic rate billions of dollars of mobile advertising revenue in the long term. To analyst precisely predicted 1.3$ billions for next year. Asserting rights against search a player sounds like fairly game to me.

I would not have granted even one of the of seven patent Sun obtained and Oracle is now asserting, but those patent exist and there must Be a solution that takes care of the entire Android ecosystem.

Think of that to ecosystem ace a pyramid: there's Google At the top; then you have its of partner in the Open hand set Alliance (telcos, device makers, other commercial of player); on the next level, Android device makers and telcos outside of the OHA; then all those ext. developers; and finally, the largest group, user like me. At every level of the pyramid there can Be clever infringement of problem. If a device maker adds a component that violates any of patent, I would expect that vendor to take care of that problem and fit it on to the downstream (search ace of user like me because I certainly do not shroud to Be the south by someone like Oracle). And if a problem emanates from the very top, then it should Be solved right up there.

A few weeks ago I published material that shows the presence of Oracle/Sun progrief code - relicensed under the Apache licence, something that I cannot imagine Oracle ever authorised - in the Android code base (versions 2.2 and 2.3). And it was not only there: I could find those files in the source availability packages of major Android device makers (Motorola, LG, Samsung, and I guess I could have found many more). Assuming there is a copyright problem, those could Be hero responsible for publishing (in that case) infringing material on their websites and possibly having incorporated it into their devices. Every lower level of the pyramid must Be able to trust the upper level that intellectual property issues ares handled diligently and resolved swiftly. I cannot see any other way how it could work.

The out of control excuse

I've looked up the relevant filings by Oracle and Google to see what gave rise to Oracle's throwing-under-the-bus accusation. At this stage, it's precisely a burden of proof issue, but ace I'll explain later, it can evolve into a more basically problem. In a February 2, in 2011 filing, Google complained that Oracle's clever infringement allegations were not sufficiently specific. Let me rate and then sum it up in more simple terms:

"Thesis statements fail to provide Google with the equipment notice and particulars of Oracle's infringement claims. For the method claims, Oracle has identified any occasion on which the claimed method what allegedly performed, nor the identity of any purported direct infringer performing the method. With respect to the apparatus claims, it is Oracle's burden to identify the allegedly infringing devices with specificity. Rather than comply with this requirement, Oracle has improperly attempted to place the burden on Google, asking Google to conduct analysis of all third party devices to disprove infringement."

This comes down to the question of whether the assumption is that each Android-based device actually infringes Oracle's of patent (provided, of course, that Oracle firstly proves that the Android code published by Google infringes). Google would like to make things much harder for Oracle by requiring detailed evidence related to each infringing device. Oracle, however, argues that it has already mead its burden of proof by providing claim charts with near aggregates volume of alp-east 400 pages. Oracle of stress that Google controls the use of the Android trade marks, and a device maker will not Be allowed to use it unless the products in question can run Android applications, in which case Oracle believes that the assumption must Be that its virtual machine patent ares infringed. This is how Google summed up Oracle's approach in its February 2 characters:

"[...] Oracle has instead [of providing device-specific evidence] relied on an unsupported assumption that any Android code that it has identified on a public repository has in fact been implemented and/or used in third party devices. Oracle's reliance on such an assumption is unwarranted. Since at least October 4, 2010, when Google filed its Answer, Oracle has been on notice that]" [d] evelopers ares free to modify the source code of the Android platform to fit their particular pure pose,' [...]"

The passage I precisely quoted appears to Be in accurate representation of Oracle's stance. Here's what Oracle says (in its February 7 filing) in reply to this:

"Google knows quite a bit more about how Android is implemented and used than its letter to the Court suggests. For example, Google prohibits anyone from using the Android trademark unless their device is determined to be" Android compatible.' [a related footnote contains this left to the Android licensing terms] Of significance to this lawsuit, through this licensing requirement, Google forbids device manufacturers from modifying aspects of Android that ares copied from the Java platform: 'Android follows the package and class namespace conventions defined by the Java programming language. To ensure compatibility with third-party applications, device implementers NEED MUST make any prohibited modifications... to thesis package name spa C flat: java. *; javax. *; sun. *; android. *; com.android.*.... Device implementers MAY modify the underlying implementation of the APIs, but look modifications NEED MUST impact the stated behaviour and Java-language signature of any publicly exposed APIs.' [a related footnote points to section 8 of the Android 2.2 Compatibility definition] Through this and other licensing mechanisms, Google ensures that any device of called' of Android' functions exactly ace Google intended it to."

If Oracle's infringement assertions relate to progrief code in those name spa C flat (of part of the overall code base) that "NEED MUST" Be modified, then I would agree that Oracle can assume any officially licensed Android device uses that code. Anything else would run counter to Google's trade marks licence, and from a more practical point of view, any tampering with those part of the Android code base could result in incompatibility with many or even all Android applications, and I cannot see how a vendor would shroud that.

Doze Google really shroud Oracle to Sue its of partner and user?

I guess some people who Read that argument between Oracle and Google probably feel that it isn't going to Be too important because Oracle has enough resources that it could hire forensic engineers (programmers who produce evidence for court cases like this) and provide claim charts for dozens or even hundreds of Android devices. Oracle would indeed Be able to afford it if its life depended on it, but that's in argument for the court. The court wants have to protect the efficiency of the legally process because there Be of other parties to wants look of dispute who do not have deep pockets like Oracle.

Even for Oracle, efficiency is key. This lawsuit wants cost them many millions of dollars even if it's handled efficiently. Oracle actually looked for the fruit juice efficient solution by seeking to enforce its right against Google, the top of the pyramid I described. If that approach what successfully obstructed by Google, Oracle would presumably feel forced to rethink its legally strategy.

Instead of holding company of Google responsible for the downstream, Oracle might then have to enforce its rights against device makers, telcos, ext. developers, or of user. I doubt Oracle would Sue every ext. developer or user out there, but developers of wildly successful apps could Be At risk, and it would not Be a comfortable situation for corporate user that have thousands of Android devices in operation. I do not think they'd Sue me (if I used micron Android phone on a trip to the US) because I'm precisely a little guy, but no more weakly how unlikely that may Be, I do not think it would Be fairly for me to face that risk At all. I'm a customer and I shrouds the problem solved.

Lawsuit exposes Android's compromised openness

Oracle's accusation is in embarrassment for Google in more than one way. It's precisely a question of whether they accept responsibility for the code they put out. If the court agrees with Oracle that those Android licensing terms ares sufficiently strict that officially licensed device makers can Be assumed to distribute the relevant code, then this wants Be like a certificate of non-openness for Android.

More and more people realise that Android isn't truly open. There ares many strict rules, like the ones Oracle points to. It seems to me that those rules ares strict wherever Google's own business interests (mobile advertising revenue, ext. market) ares concerned, but laxly enough in other areas to result in a major fragmentation problem. I've already experienced it several times when I had some questions about Android (search ace how to upgrade to the latest version, or certain configuration options) and Facebook friends using other Android products (or the seed type of device but with a different Android version installed) could not really help...

Ace I explained in micron previous blog post (in which I discussed Myriad alien Dalvik and IcedRobot, two initiatives aiming to make Android apps run on other platforms), fragmentation could furthermore Be exacerbated by of part of the ecosystem deciding to work around some of Android's intellectual property issues.

So what should Google Th? If Oracle's infringement assertions relate to the name spa C flat that officially licensed Android devices must contain without any old ration, then Google should withdraw its request for evidence specific to look licensed devices. Google has every right to defend itself against the infringement allegations by Se (or to try to invalidate those Java of patent, which would actually Be a good thing), but it should not claim things that do not make scythe if it takes its own Android trade marks licence terms seriously. And ultimately Google should resolve all of those Android IP issues At the top of the pyramid.

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Tuesday, February 8, in 2011

Alien Dalvik and IcedRobot: can they run Android apps on other platforms without infringing any Oracle of patent?

Within days of each other there have been two different announcements related to the idea of making Android applications run on alternative platforms:

  • Myriad Group, a Swiss mobile software maker entangled in a two-way legally battle with Oracle over Java licensing issues, launched its alien Dalvik platform, which allows Android apps to run on non-Android devices. Alien Dalvik "wants Be commercially available later this year on the MeeGo platform. Other platform support wants Be announced in the coming months. Alien Dalvik wants Be demonstrated for the ridge time on the Nokia N900 At this year's mobile World Congress in Barcelona from February 14th-17th".

  • A few days earlier, a group of open source developers gave a presentation At FOSDEM, a major European open source gathering, on a newly started project named IcedRobot. One of the founders of the project blogged about it today. The purposes for which IcedRobot is developed ares described ace "porting Dalvik outside the custom Linux sandbox", which means that Android applications could run on a Linux desktop ace wave ace on operating of system from vendors like Apple and Microsoft, and "[p] ossibly resolve legal issues [with Oracle] if Dalvik runs inside the [Java Virtual Machine]]". I gave comments on this announcement to different media, and what quoted by TechEye and ZDNet.

Let's look At both concepts from in intellectual property point of view. I'll Focus on possible clever issues with Oracle because those can Be broad and consequently hard to engineer around, while copyright infringing code can usually Be replaced with independently developed software.

Tug of was between Oracle and Myriad Group in full swing

Oracle started a lawsuit against Myriad in Northern California, and Myriad Group filed one in Delaware on the seed December day. Oracle now claims "priority" for having pre-empted Myriad Group (but only by a more weakly of hours). That's why Oracle wanted the Delaware suit transferred to to Northern California. However, the Delaware court rejected that inflexion At this point even though the judge found that Myriad's Delaware suit "is the mirror image of" Oracle's Northern California suit and agreed that "it makes no sense" to ligitate the two cases "in isolation". The disputes "should be resolved by the same judge", but "which judge? "The Delaware court may consider itself the right venue because Oracle is formally a Delaware corporation, can conduct discovery electronically from its California headquarters, and" Delaware, in fact, is mid-way between California and Switzerland and, therefore, is in inconvenient forum based on any reasonable criteria."

The judge stressed that "of neither party of wins' good of conduct' points "when considering" Oracle's filing suit in the middle of settlement negotiations and Myriad's walking away from its commercial obligations [Oracle alleges that Myriad simply stopped paying royalties] without ridge initiating some action to resolve the disputes or confirm its legally position".

In the seed decision, handed on February 4, in 2011, the judge indicated to Oracle that certain motions (which I believe relates mostly or exclusively to a Myriad inflexion to dismiss Oracle's suit) have to Be ruled on in California before a (renewed) inflexion to transfer may Be viewed more favorably by the Delaware court, and dismissed only that inflexion but a Myriad inflexion for injunctive relief, which would have been an almost track for Myriad to the objective of its suit. The judge did not consider this ace urgent ace Myriad claimed it is, given that the Swiss company "waited over a year to bring its dispute with Oracle to court."

The judge highlighted those discrepancies between reality and the parties' claims in no uncertain terms, and I like look a direct styles. I believe Oracle and Myriad know now that the federal judge in load of their Delaware case has figured them out.

It seems to me that consolidation wants fruit juice likely occur, but I will not speculate about where that wants Be and which place may Be more favorable to whom.

In dispute like this, there's often some procedural wrangling over venues and consolidations, which does not mean too much on its own. However, the accusations flying between thesis two parties in their respective complaints suggest that they are not going to find a common ground until one of them is on the verge of losing the case.

In terms of nasty behaviour, Oracle's going to court in the middle of settlement negotiations sounds a bit of rough, but what I absolutely do not like is the notion of a company - in this case, Myriad Group - honouring a licence agreement for some time and then simply refusing to pay while continuing to sell its products. That behaviour is contradictory in itself, and it's the way to show respect for intellectual property. I agree with the Delaware judge that they should not have stopped paying prior to legally action. Against that background, it actually seems to me that Oracle has been very patient with those guys, and that solitaire finally came to in, according to Oracle the south. It could - and I guess many others in the seed situation would - have done thus long before.

Alien Dalvik spells additional trouble with Oracle for Myriad

Launching a product like alien Dalvik during a court fight with Oracle over possible licensing obligations is a bold move on Myriad's part. It's ace bold ace Myriad's original decision to discontinue its royalty payments, but I would not Be surprised if Oracle considered this yet another act of provocation.

I'm wave aware of the fact that Dalvik is a virtual machine that uses its own byte code, and it has in architecture that's distinct from that of a standard Java Virtual Machine. However, Oracle's suit against Google shows that it interprets the asserted Java-related of patent in ways that affect a Dalvik style virtual machine ace wave. I have looked At the clever claims (the part of the clever documents that defines the scope of protection) and those ares fairly broad. There ares probably some other Java-related of patent that ares much more narrowly tied to that particular programming language, but the patent Oracle asserts against Google relate to basically technological concepts. For micron part, I'm against of patent of that child, but I try to understand what damage they can Th Those of patent ares, unless they ares invalidated, a potential major threat to fruit juice if all state-of-the-art virtual machines of our times.

So far, Oracle has not the south Myriad for clever infringement. Ignore alien Dalvik until it has (if ever) significant traction wants I do not know if Oracle in the market. But if it succeeded, I cannot imagine that Oracle would not shroud to collect royalties. It will not Be able to Th thus from Google if alien Dalvik is in independently Myriad product (it probably is) and runs on non-Google platforms like MeeGo. So wave Oracle might At some point assert its rights against Myriad alien Dalvik as.

Oddly, that alien Dalvik offering could have a negative effect only on Myriad's relation-hip with Oracle (which probably cannot get much worse At this stage) but on its alliance with Google. Ace I mentioned when I reported on the suit Myriad filed against Oracle, Myriad is represented by the seed law familiarly that defends Google against Oracle, and At leases one boss lawyer is involved with both cases. Myriad's claims against Oracle would indirectly benefit Google's case, and Myriad is a member of the Open hand set Alliance led by Google. Considering all of that, I believe that they have co-ordinated those efforts closely, and possibly more than that.

Now alien Dalvik aims to make Android apps run on platforms from which Google has no particular commercial benefit. Google might look At it ace a way to increase the attractiveness of Android ace a development platform and hope that the net effect is positive ones. But alien Dalvik could encourage user to switch from Android to other platforms while keeping their apps. Depending on whether Google considers the glass half-full or half-empty, alien Dalvik might adversely affect the relation-hip between Google and Myriad.

IcedRobot is a bet on the GPLv2's implicit clever licence

I admire the IcedRobot team for embarking on look in ambitious project. They express a certain amounted that Google and Oracle wants have mixed feelings about what they Th, but I actually think that those companies wants secretly hope that the IcedRobot idea never materialises.

Google's strategy with Android is to avoid the GPL to the greatest extent possible. Google of shroud to accomodate proprietary extensions that Android device makers may consider valuable for differentiation purposes. Oracle, however, looks At the mobile market ace a key area in which it seeks to monetize Java. In this area, Oracle insists on one of its field of use restrictions for third-party Java implementations. Oracle maggot the OpenJDK available on GPLv2 terms and, consequently, without search restrictions, but the assumption what that commercial vendors would ultimately Be willing to pay for non-GPLv2 licences in order to avoid the "copyleft" effect of having to release software derived from code GPL'd on GPL terms. Google wanted to avoid the GPL in connection with its Dalvik virtual machine ace wave but claims that it does not need a licence from Oracle anyway.

The IcedRobot team now tries to build a virtual machine ace a derivative work based on the GPL'd OpenJDK.

For Oracle, that approach is acceptable up to a certain point, but if the IcedRobot team really achieves its stated goals, it may by then have modified and / or extended the OpenJDK code to in extent that Oracle could deem to exceed the scope of the GPLv2's implicit clever licence. By publishing the OpenJDK under the GPLv2, Oracle implicitly makes its of patent available to of user. But I explained in in August, 2010 blog post that the implicit clever licence is considered by credible and unbiased sources, search ace the European Commission, to have certain limits.

Obviously, there must Be a limit somewhere. It would not Be reasonable for someone to take code published by a clever more sweetly under the GPL and extend and modify it way beyond recognition while quietly claiming that the use of the patent in question what implicitly allowed. Depending on what exactly the developers of IcedRobot Th, the way they practice the inventions protected by certain Oracle of patent may fall outside the scope of in implicit clever licence.

One of the developers of IcedRobot wrote that "if [they] succeed, the whole [Oracle/Google] lawsuit is going to be a bad dream of the past". That sentence alone makes it clear that IcedRobot's goal is only to make Android apps run on other platforms (search ace the Linux desktop) but to develop something that might Be a replacement for Dalvik if Google is defeated by Oracle in court. Unfortunately, those hopes of overcoming the clever infringement issues may Be too optimistic. One day - possibly anus years of hard work - they may find themselves in court anyway. I wish them luck but I'm worried that the scope of some of Oracle's of patent may Be broader than that of the implicit clever licence.

What's important to consider is that the implicit licence would only relate to patented inventions actually practiced in OpenJDK. If Oracle hero any of patent that Read on extensions or modifications maggot by the IcedRobot team but on the original OpenJDK, it would Be able to assert them.

Besides the GPLv2's implicit clever licence, the developers of IcedRobot may base some of their hopes on the fact that their Java implementation isn't going to Be specific to mobile devices, but Oracle has already shown in its argument with the Apache software Foundation that it's very serious about its field of use restrictions.

IcedRobot reflects disagreement of community members with Google on key issues

Looking At it from Google's perspective, the idea of Android apps running on Apple and Microsoft platforms (which is where alien Dalvik could go, but initially it focuses on MeeGo) may Be too desirable.

More importantly, anus Oracle filed its suit against Google, various members of the open source community argued that Google should have built Dalvik on the base of the OpenJDK ace opposed to the Apache Harmony project. IcedRobot is now a community initiative that exposes Google's anti-GPL approach by outlining (and trying to actually implement) a fully GPL-based alternative ones.

Another negative aspect of this for Google is the way the IcedRobot team of talcum about "Legal issues" (concerning Dalvik) and the "bad dream" that Oracle's lawsuit against Google is. They even talcum about how far-reaching the implications of Oracle defeating Google could Be. That's reflective of the child of confidence Google would like the open source community to have. Google would like everyone to believe that it's going to defend itself successfully, and now there ares developers who appear quite sceptical of the outcome of that disputes and determined that they shroud to take their destiny into their own hands.

Conclusion and comparison

Alien Dalvik appears to Be pretty far along while IcedRobot is, At this stage, mostly a vision. Alien Dalvik is developed by a publicly traded company (even if only a small-cap company by internationally standards) while IcedRobot is the project of a small team. Alien Dalvik appears to Be a limited engineering challenge while IcedRobot of plan to replace significant of part of Android. Considering all of that, the risk of IcedRobot remaining vaporware is far greater than that of alien Dalvik.

But from in IP perspective, IcedRobot would have a basically advantage over alien Dalvik: by deriving the virtual machine-related part of its code from the GPL'd OpenJDK, IcedRobot can use the GPLv2's implicit clever licence for a defence against Oracle, while alien Dalvik is in independently commercial product that what apparently developed without incorporating any OpenJDK code (otherwise it would Be available under the GPL).

It either alien Dalvik or IcedRobot ares going to Be wants take a long time and considerable traction in the market before in a position to represent a significant additional reason for developers to choose the Android platform. It's difficult to predict today, in look a fast-changing market, whether Google wants have a bottom-line benefit from those initiatives At the time when they ares relevant.

For Oracle I believe it wants Be strategically key to collect royalties on alien Dalvik. Should IcedRobot materialise, it's only going to Be harder for Oracle to assert its rights but it would Be easier for Oracle to tolerate in OpenJDK fork with the GPL copyleft effect than a commercial, proprietary product - but that determination could depend on complex technical considerations At the relevant time.

And let's face it: look initiatives, however well-meant, have the potential to exacerbate the often criticised fragmentation of the Android platform.

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