Let’s kick the weekend off with a discussion on patent litigation! (All parties jump into the air, freeze frame.)

But seriously, the above video explains in a well-illustrated nutshell how the recent Apple v. Samsung case sets the stage for a battle of even more epic proportions with Google. Or a long and winding road to licensing agreements. Or both.

Google’s Android operating system has already been through the wringer with the Oracle lawsuit, which was ultimately a mixed-bag victory for the Android maker. Apple, however, is going after Google’s many hardware manufacturer partners rather than Google itself, for now at least.

Still, Google has acquired Motorola (and its patents) and has said that move will assist in the defense of other Android-using manufacturers as lawsuits continue to pop up around the globe.

Google scored a legal victory today, as a federal jury has decided that the search giant wasn’t guilty of patent infringement claims made by Oracle.

The two companies have been wrapped up in a legal battle since August 2010, when Oracle accused Google’s mobile operating system Android of violating patents and copyrights related to Java that Oracle owns. The trial is seen as very important because it’d one of the most prominent battles over intellectual property in the software industry. In addition, it could set a precedent for whether or not a programming language can be copyrighted, as VentureBeat’s Jolie O’Dell previously pointed out.

Today’s verdict wraps up the second, patent-oriented phase of the overall trial. The first portion, focused on copyrights held by Oracle, concluded earlier this month, with the jury reaching a mixed verdict — basically finding that Google did infringe on some of the structure, sequence, and organization (SSO) of the 37 Java APIs used in Java.

Google still has yet to be charged with damages related to first phase’s outcome.

In a statement related to the trial, a Google spokesperson said: “Today’s jury verdict that Android does not infringe Oracle’s patents was a victory not just for Google but the entire Android ecosystem.”

Via WSJ

July 9-10, 2013
San Francisco, CA

Early Bird Tickets on Sale

The jury has just now returned its partial verdict for the first (and perhaps most important) phase of the Oracle v. Google trial: The 12 jurors found Google had infringed on Oracle’s copyrights by its use of structure, sequence, and organization (SSO) of the 37 Java APIs used in Java. (The full verdict is embedded below.)

For weeks now, the courtroom has echoed with arguments and testimony to determine one key principle: Are programming languages copyrightable, or aren’t they? And with this decision, twelve of our peers have declared that at least to some extent, they are.

The partial verdict was accepted by Judge William Alsup, who said last week in court, “I’m going to receive a partial verdict. I’m not going to let this work go to waste.”

For the jury’s deliberation, four questions were posed, and each question was broken into multiple parts. The verdict returned today speaks to the first part of the first question only.

After the verdict was delivered, lawyers for Google argued that a mixed-bag verdict (on whether the search giant infringed the overall structure, sequence and organization of copyrighted works) was unacceptable and asked for a mistrial.

For his part, the judge said in court today there was “zero finding of copyright liability” other than in nine lines of code to which Oracle’s damages report attributes no value, anyhow. Alsup also rejected Oracle’s claim for “infringer’s profits” from the nine lines as “bordering on the ridiculous.”

Google uses the Java programming language in its Android mobile operating system. Oracle controls and owns Java, and it’s claiming that Google’s particular use of the language violates Oracle’s copyrights and patents.

Google has been arguing that no programming language, especially an open-source one (as Java is), can be copyrighted.

The first phase of this landmark trial was to settle this debate once and for all. However, based on what this reporter knows, both as a student of Java and as a firsthand observer in the courtroom, no one is more ill-equipped to make this decision than Judge William Alsup and the jury of San Franciscans selected for this trial.

As the American justice system dictates, the jury was selected by carefully avoiding anyone with expertise in the field. Engineers from multiple large Silicon Valley companies were turned away. The final jury members selected included a plumber, a nurse, a retired photographer, a store designer for Gap, a city bus driver, and a postal worker — in other words, folks with as little hope of understanding the deeply technical language and concepts they were about to encounter as I would have of understanding the intricacies of plumbing or the city’s public transit system.

First, Android founder Andy Rubin told the court that he had been under the impression that some of the Java APIs were copyrighted and that Google would need a license from then-Java-owner Sun to use them. Next, former Google CEO Eric Schmidt told the court that he thought Google didn’t need anyone’s permission to use those APIs and other parts of the Java language… mostly.

And on the Oracle side of the arguments, we learned that even though then-Sun CEO Jon Schwartz was publicly congratulatory about Android’s use of Java, in private email chains, he was angling for Sun to get licensing fees from Google.

Throughout the testimony, technical concepts came up frequently. In sitting on the courtroom’s hard, wooden benches, I saw the basics of Java explained in terms at times clear and at times quite obtuse. I felt like I understood the arguments both sides were presenting, but only because I had taken a computer science course or two and had used Java in writing simple programs in the past, myself.

The judge, on the other hand, had never dipped his toes into the waters of object-oriented programming. One of the most entertaining and excruciating parts of Schmidt’s testimony involved the tech exec explaining to Alsup how methods and classes work. Schmidt also had to explain to the jury what APIs are and how Java’s class libraries work.

At one point, Schmidt even had to stop the Oracle attorney during cross-examination because the lawyer wasn’t using precise enough language. The attorney was asking about APIs in very general terms, and Schmidt rightly refused to answer until the attorney worded the question correctly; an answer with a single word out of place could have had a radically different meaning from what was intended. At that point, Schmidt’s testimony involved a detailed discussion of the print method and an explanation of the layers of abstraction between hardware and human-readable interfaces.

I’m sure Schmidt was doing his best, but the explanations were still roundabout and ultimately unclear. What this courtroom needed was a couple weeks with a Java instructor, not the back-and-forth yammering and obfuscation they got from executives and attorneys (the more senior of whom seemed as oblivious to the inner workings of Java as did the judge and jury).

“This is a consistent issue in patent cases,” said Peter Yared to VentureBeat today. Yared is currently CTO for CBS Interactive and was formerly Sun’s CTO of the Application Server Division — and one of the most vocal advocates for open-sourcing Java in the first place.

“What is super odd about this case is that there is a claim about copyrighting APIs,” he said. “That would have a huge impact on the industry if you can’t replicate existing APIs and do a cleanroom implementation. I think that even laypeople should understand that one.”

“We appreciate the jury’s efforts, and know that fair use and infringement are two sides of the same coin” said a Google rep in an email to VentureBeat. “The core issue is whether the APIs here are copyrightable, and that’s for the court to decide. We expect to prevail on this issue and Oracle’s other claims.”

While I’m glad that, corporate marketing aside, most of the jurors were able to come into the courtroom free of prejudice, justice would have been much better served had the jury been possessed of even the most meager technical background. At this point, I am still not certain that we have any satisfactory answer to the deeply technical question first posed by this trial; all we have is the muddled opinions of twelve laypeople who’ve been subjected to a few weeks of contradictory legalese.

And my suspicions are unfortunately bolstered by the partial verdict and mistrial request.

For today’s partial verdict, the jury was given four questions: Did Google’s use of 37 Java APIs in Android infringe on Oracle’s Java copyrights; and if so, was the infringement covered by fair use, which permits copying under limited circumstances? The second and third question ask about possible infringement of the Java API documentation and some instances of line-by-line duplication of a small amount of code from Java into Android. The fourth question asks whether Sun and Schwartz’s public statements made Google believe it was right to use Java without a license.

Two more phases remain in this trial; the second phase will cover patents, and the third and final phase will determine damages. VentureBeat will be covering this case, both in and out of the courtroom, to its conclusion.

Follow all VentureBeat’s courtroom reporting in Oracle V. Google

July 9-10, 2013
San Francisco, CA

Early Bird Tickets on Sale

Oracle has asked Judge William Alsup to throw out the entire testimony of Jonathan Schwartz (pictured) in its ongoing (and drama-filled) trial with Google over Android.

Schwartz was Sun’s CEO. Sun owned the Java programming language, which is used heavily in Android. Oracle bought Sun, acquiring Java in the process, and decided to take Google to court for what it calls violations of patents and copyrights in the open-source software.

So far, Schwartz’s testimony, including old blog posts and emails, have been some of the strongest evidence Google has that it wasn’t guilty of any wrongdoing in the Java creators’ eyes when it began working on and rolling out Android.

And last week, Schwartz himself testified on the stand, saying that as Sun’s CEO, he chose not to sue Google over Android’s use of Java because “we [Sun] didn’t feel we had any grounds” for such a suit.

Judge William Alsup, who has proved to be a no-nonsense sort of character so far, previously denied Oracle’s request to bar other Schwartz-related evidence from use in the case. This evidence, a five-year-old blog post, showed that the CEO was publicly in favor of the Android operating system and believed it would have a positive overall impact on the larger Java community.

Much like Schwartz’s other testimony, the post “seems to be part of a pattern of acquiescence or tolerance of what Google was doing,” Alsup said in court last week. “At this time, Sun seemed to be enthusiastic about what Google was doing … It was only [two] years later that Oracle acquired the company and things changed.”

Google, on the other hand, knew Sun wanted licensing fees for Java use in Android, but Schwartz and Google executives failed to reach a satisfactory agreement on what that partnership would look like (or cost). Still, in the end, Schwartz and Sun were content enough to let Android be — which, on its own, makes Oracle’s suit seem predatory or trollish to the untrained eye.

As we wait for the jury to return a (perhaps partial) verdict in this complicated and highly technical trial, we also wait to see what testimony both parties will unearth next — and whether Alsup will allow Schwartz’s words to stand. Stay tuned for details on the verdict, which should be coming in on Monday.

July 9-10, 2013
San Francisco, CA

Early Bird Tickets on Sale

Emails from Android’s earliest days showed Google and Sun at a breaking point in their negotiations over Google’s use of the Java programming languag.

Eric Schmidt, formerly Google’s CEO, gave testimony today in his company’s ongoing lawsuit with Oracle over Android. Android uses parts of the Java programming language, and Oracle claims Google is using Java in violation of several copyrights and patents. Today, Schmidt said he knew that Sun (now owned by Oracle) was trying to get paid for the use of Java in Android.

The court first looked over slides from a 2005 presentation on “Project Android” from Android creator Andy Rubin. These slides laid out Google’s plan for making money on Android: control the user experience, build mobile apps for Google services, and generate revenue from (what else?) mobile web search. Another slide noted that Google wanted to disrupt Microsoft and Sybian’s control of the mobile ecosystem (remember those days?) and that the company wanted to build a community around Android open-source APIs and apps.

At Sun, Schmidt worked on Java before it even launched. “Java was more than just a language,” he said. “It was a platform, a strategy… an attempt to build a new religion around a new way of thinking.”

Schmidt said Sun was asking for licensing fees if another company or developer wanted to use Sun’s implementation of Java. But Sun was also allowing others to fork Java without paying licensing fees.

Earlier in the trial, the Googler said he didn’t feel Google was at all obliged to pay Sun licensing fees. But in the second part of his testimony, Schmidt said Googlers thought an open, non-Microsoft mobile OS would appeal to developers and consumers and would experience explosive growth; and at first, Google was working with Sun on using Java in Android.

“You’re better off working with everyone else. You’re better off talking,” Schmidt said of those early partnership talks.

Related Coverage: Rubin’s last stand: Android founder testifies

During the talks, Sun CEO Scott McNealy, whom Schmidt called a mentor, emailed the Google Android team, saying, “I’m very supportive of driving a completely open phone stack… [then-Sun president] Jonathan [Schwartz] and I are on top of this — I’m worried about how we’re going to replace the revenue this is likely going to submarine.”

In other words, said Schmidt, “He understood the benefit of having a billion users.” But Schmidt also admitted he knew Sun wanted money — licensing fees that would help the company continue to make money on an open-source language. In fact, in an October 2006 letter, Rubin recommended that Google pay for the Sun license and release Android as open-source software.

Later, Schwartz emailed Schmidt saying the negotiations between their companies had “come to an impasse” but that both he and McNealy wanted to keep those negotiations moving forward.

“Sun is ready to embrace Google’s innovation,” read Schwartz’s email. “[But] we are not willing to cede complete control of the management… for key components of its stack.”

Google was still considering what parts of Sun technology would be used and paid for, and engineers on each side thought they could build better components for Android, to summarize Schmidt’s statements. At the end of the day, it all came down to a power struggle.

“At the highest level, the core issue had to do with control,” Schmidt concluded. “Sun’s view was that they wanted much tighter control.” Schmidt said that money was “not really” what broke the deal down. “We would have paid [the amount Sun was asking for] simply to resolve it. The money wasn’t as important as this question of making a successful platform.”

Also, as Rubin wrote in a November 2006 email, there were some concerns about the use of the GPL license for Sun’s Java APIs. “The GPL license (Sun’s license) doesn’t work for us,” Rubin wrote.

Negotiations wrapped up with no real conclusion in late 2006, Schmidt said. “We continued to talk, and eventually it became clear… that we were unable to come to a satisfactory deal.”

Instead, Schmidt said, the Google team built a ground-up operating system that didn’t incorporate Sun’s proprietary parts of Java and hence wasn’t subject to licensing fees and agreements. Whether that assertion is true — well, that’s the crux of the whole case.

However, in late 2007, Google was preparing the first Android SDK launch, Schwartz was still publicly and privately supportive of Android, ostensibly proving that Sun had no “sour grapes” symptoms over not reaching a licensing agreement and that Sun didn’t feel its copyrights or patents were being violated.

VentureBeat is reporting live from the courthouse today; all quotations are direct from the named sources.

Follow all VentureBeat’s courtroom reporting in Oracle V. Google

July 9-10, 2013
San Francisco, CA

Early Bird Tickets on Sale

Former Google CEO Eric Schmidt (pictured) gave testimony today to try to save Android from Oracle’s clutches — and from extinction via stiff per-device licensing fees.

In Oracle’s ongoing lawsuit with Google over Android, Oracle’s attorneys today displayed a slew of documents showing Google thought it needed software licensing agreements from Sun to use Java in the Android operating system. However, Schmidt directly contradicted the multiple emails and presentations from 2005 and 2006, stating he never thought Google needed such permission to work with the open-source software.

It largely boils down to a he-said-she-said argument in this trial, with Oracle claiming Schmidt and Google knew they didn’t have free and clear rights to Java, and Google claiming it did — or that Schmidt, former Sun CEO Jonathan Schwartz, and other key executives thought it did.

In one presentation, Java’s class libraries and virtual machines were said by Android founder Andy Rubin to be “a hotspot” for the company, with the Android team still shopping for partners for these, such as IBM and a few others. “The team looked to try to figure out what the best JVM solutions were,” said Schmidt, mentioning that the team was trying out some Apache software, as well.

And the reason Google was searching for such alternatives, Oracle’s attorney implied, was because the search giant was trying to avoid licensing the software through Sun.

Senior executives at Google also reviewed a presentation about a possible deal between Google and Sun to work on Android, to accelerate Android development, and to create a Microsoft-busting alliance. Google founders Sergei Brin and Larry Page were asking for alternatives to Java for Chrome and Android, but that the alternatives “sucked” and that a Java license needed to be negotiated with Sun.

“I was aware at the time that we were thinking about what to do,” said Schmidt. Oracle’s attorney asked whether Schmidt thought at that time that Google was required to take a license from Sun. “Given the way Sun’s licensing model works, that is not actually correct,” he responded.

“I believe… you need to have a license to use their [Java] logo,” Schmidt said during Google’s questioning to clarify what that part of the presentation meant.

At the end of Oracle’s questioning during the first phase of this trial, Schmidt’s testimony seemed to contradict earlier statements from Rubin that he knew the technology was copyrighted and would require licensing.

Next, Schmidt will be questioned by Google’s attorneys and will likely be telling an equally complex story. Stay tuned for more.

VentureBeat is reporting live from the courthouse today; all quotations are direct from the named sources.

Image courtesy of Jolie O’Dell, Flickr

July 9-10, 2013
San Francisco, CA

Early Bird Tickets on Sale

Android is on trial today in San Francisco, and its founder, Googler Andy Rubin, is stepping into the witness stand to save it from a slow death by patent litigation.

The crux of Rubin’s testimony today revolved around the greatest of all Android buzzwords: fragmentation.

Google is being sued by Oracle for copyright violation and patent infringement. Oracle-owned Java, an open-source programming language, is used in the Google-owned Android mobile operating system. An Oracle victory in the case could be enough to strangle Android, which doesn’t generate enough revenue to pay for software licensing.

Yesterday, Rubin dropped a bit of a bomb in court. In 2006, while Android was in early stages of development, Rubin sent a series of emails seemingly acknowledging the Java APIs as copyrighted and subject to licensing or permission from Java’s owner (then Sun Microsystems).

Related Coverage: Eric Schmidt’s surprising, contradictory testimony

When asked in court whether he thought in 2006 that he needed Sun’s permission to use the java.lang API and whether he thought the java.lang API was copyrighted, Rubin responded, “Yes.”

However, the following year, Sun CEO Jonathan Schwartz wrote a public blog post congratulating the Android team on its progress. Far from claiming Android was damaging Java’s rights-holders, Schwartz said the mobile OS had “strapped another set of rockets to the community’s momentum.”

These statements from Schwartz, whose company then owned Java, would seem to negate Oracle’s claims of infringement and damage and instead point to Sun’s approval of Google’s use of Java in Android.

Today’s statements from Rubin, however, showed another side of the Sun/Google relationship. While Schwartz was publicly enthusiastic about Android, private emails showed concerns on both sides about fragmentation.

In April 2006, a Googler on the Android project wrote to Rubin, “We need to provide an alternative to MSFT, and we need to do it in such a way as we don’t fragment 3rd party developers… Java has very little fragmentation.”

Rubin and the Oracle attorney went back and forth over whose definition of “fragmentation” meant what, then the Oracle lawyer brought up another email. In late 2007, a Sun SVP emailed Rubin to express the company’s concerns about Google’s Java work in Android leading to “a fractured environment” for developers.

Again, Rubin dickered over whether he and Sun and all Googlers had the same definition of “fractured,” but it was clear that Rubin was tap-dancing a bit and that there was, in fact, at least some friction over whether Sun was totally in love with Google’s implementation of Java in Android.

However, outside the courtroom, we heard from Peter Yared, currently CTO for CBS Interactive and formerly Sun’s CTO of the Application Server Division. On Twitter, Yared told VentureBeat, “As one of the few peeps at Sun advocating open sourcing java back in the day, we definitely knew people would fork the code.” And yes, he clarified, forking would mean fragmentation, which Sun understood.

“We felt that the Java technology compatibility kits would prevent frag[mentation] & maintain revenue. Ironically, now companies like Amazon are forking Android, and devs are complaining about Android fragmentation.”

Google’s attorneys will question Rubin themselves later during their portion of the trial. Next up, former Google CEO Eric Schmidt is taking the stand, so stay tuned for details on his testimony.

VentureBeat is reporting live from the courthouse today; all quotations are direct from the named sources.

July 9-10, 2013
San Francisco, CA

Early Bird Tickets on Sale

A blog post written by former Sun CEO Jonathan Schwartz (pictured) has come into play in a tense courtroom this morning.

In Oracle’s ongoing lawsuit against Google, Judge William Alsup has allowed Google to use as evidence a particularly telling post from 2007 — a post that Oracle had already carefully scrubbed off the Internet and tried to exclude from the trial.

Oracle is suing Google over Android, claiming that Google had no right or permission to use the Oracle/Sun-owned Java programming language in the Google-owned Android operating system.

However, as Android was launching many years ago, Schwartz (who led Sun before it was acquired by Oracle in 2010), wrote an extremely positive blog post about Java’s use in Android.

Related Coverage: Eric Schmidt’s surprising, contradictory testimony

The post, which you can only read now via the Internet Archive, reads in part:

We’ve obviously done a ton of work to support developers on all Java based platforms, and were pleased to add Google’s Android to the list…

Needless to say, Google and the Open Handset Alliance just strapped another set of rockets to the community’s momentum – and to the vision defining opportunity across our (and other) planets.

Today is an incredible day for the open source community, and a massive endorsement of two of the industry’s most prolific free software communities, Java and Linux.

Yesterday, Android founder Andy Rubin admitted that in 2006, he thought key Java APIs were copyrighted and subject to permission from Sun. However, a later and very public congratulatory post from Sun’s CEO would give Google some important ammunition in this trial.

Oracle’s attorneys objected to the post’s being admitted as evidence in the case. But this morning, Alsup said the post was important to the trial.

“It seems to be part of a pattern of acquiescence or tolerance of what Google was doing,” Alsup said. “It was only [two] years later that Oracle acquired the company and things changed.”

Alsup continued to say that although Oracle now accuses Google of patent and copyright violations, “At this time, Sun seemed to be enthusiastic about what Google was doing… It may be that no particular [Google] witness can recall reading this and that they relied on it, [but] I think that ought to come into evidence.”

In fact, Alsup said, “If Sun itself thought that Android was going to strap some rockets [to Java]… then how can Oracle can say its been damage? There ought to be a counterclaim for unjust enrichment,” a quip that brought a ripple of laughter to the courtroom.

“I can see this being a legitimate item of evidence,” Alsup concluded. “This is fair game. The motion to exclude is overruled.”

VentureBeat is reporting live from the courthouse today; all quotations are direct from the named sources.

Image courtesy of JD Lasica, Flickr

Taking the witness stand today in an ongoing legal battle royale, Android co-founder Andy Rubin may have given Oracle some heavy artillery in its lawsuit against Google.

Rubin, who began working on building Android in 2003, said in court today that while Android was being developed, he was under the impression that key Java APIs were protected by copyright and that Google would need to work with Sun Microsystems or license the technology from Sun in order to make Java for Android work.

However, when Oracle bought Sun in a strategic acquisition in early 2010, no such arrangement had been reached. Oracle was quick to file a lawsuit for patent violation and copyright infringement.

Oracle lead attorney David Boies asked Rubin specifically if Rubin thought Google needed Sun’s permission to use the java.lang APIs, and Rubin answered in the affirmative.

Whether or not a programming language can be copyrighted has become a cornerstone of this lawsuit. Android has been using (at least parts of) Java, an open-source language, for the better part of a decade. Oracle argues that Google is violating several patents and copyrights with Android and is demanding a per-device licensing fee — which might be enough to ruin Android’s already small revenues.

Currently, Google’s position is that an open-source programming language is not copyrightable — a position that Rubin seemed to contradict today.

The testimony as it stands could end up being something of a smoking gun, but Rubin’s turn in the witness stand ended with Oracle’s questions. Tomorrow, Rubin will be in the stand again with Google’s attorneys questioning him to get another side of the story. VentureBeat will be in the courtroom at that time, so stay tuned for live reporting.

The Google/Oracle trial began last Monday and is expected to stretch through the summer.

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July 9-10, 2013
San Francisco, CA

Early Bird Tickets on Sale

After months and months of mediation talks, Google and Oracle are heading to a trial over Android, and the jury is selected and ready to go.

Reuters reporter Dan Levine took to Twitter today to give juicy tidbits about the jury selection process.

The final jury includes five men and seven women from a diverse range of professions. The decision makers for this landmark case on programming language copyright include a plumber, a nurse, a retired photographer, a store designer for Gap, a city bus driver, and a postal worker.

A few folks, including engineers from HP and Cisco and two lawyers, were dismissed as potential jurors. Levine also noted that Judge William Alsup told jurors “that if they buy an Android phone during the trial he’ll probably have to have evidentiary hearing. Lotsa laughs.”

Alsup also told jurors that if they read a single word from the mainstream or tech press regarding the trial, “There will be an evidentiary hearing and possible contempt of court,” Levine said.

The whole dispute started with Java, the open-source programming language that has been owned by Oracle ever since a strategic acquisition in early 2010. Google has used Java for Android since before Android’s public debut in 2008. However, Oracle argues that the Android maker is violating several patents and copyrights with Android and is demanding a per-device licensing fee — which might be enough to ruin Android’s already small revenues.

This is an extremely complicated matter coming into the courtroom — one that involves the intricacies of patent law, the mind-boggling complexities of mobile programming, the quagmire that is open-source software litigation, and the he-said-she-said nature of any discussion about and between two tech companies. The naiveté of the jurors in such matters might strike some as a disadvantage to all parties involved, but these San Franciscans are bring something better than sophistication and experience to their deliberations: fresh eyes and (hopefully) common sense.

So, what happens to Android in a worst-case scenario? “From a consumer standpoint, consumers should not be concerned about losing their Android phone,” a Google spokesperson told VentureBeat in a recent phone chat. “There’s no indication that Android is under threat… We’re actively pushing back on Oracle to preserve choice in the marketplace in the long term.”

The jury is hearing opening statements from Oracle and Google attorneys as we prepare to publish this post. Stay tuned for more from the thrilling and complicated trial that will decide the fate of Android.

July 9-10, 2013
San Francisco, CA

Early Bird Tickets on Sale

After months of tentative talks and rejected offers, Oracle and Google are finally heading to court in a lawsuit that puts the fate of the Android operating system in the balance.

In a memo penned today (which we’ve embedded below), Magistrate Judge Paul S. Grewal wrote that Google and Oracle had reached an irreconcilable impasse in their talks and, “In the end, some cases just need to be tried,” wishing both companies luck as their trial begins in San Francisco on Monday, April 16.

Oracle first filed suit against Google in 2010 claiming the search company had infringed on Java-related intellectual property.

Java is the programming language that forms the backbone of Android, Google’s blockbuster success of a mobile operating system. The Java IP in question, including a slate of specific copyrights and patents, had only recently been transferred to Oracle when that company finalized its acquisition of Sun Microsystems in early 2010.

Last summer, Google indicated it may have been willing to settle out of court in the matter. However, after some delays and a judge-ordered stay in the proceedings, the talks have apparently ended with no satisfactory resolution in sight. Ergo, a trial.

An Oracle victory in court could add up to billions in damages, and given that Google’s revenue per device is quite low — perhaps adding up to less than $550 million since Android’s debut in 2008 — any per-device licensing fee would put a damning dent in Google’s Android revenue.

Googlers have previously and repeatedly reassure VentureBeat that Android is not going anywhere anytime soon. “From a consumer standpoint, consumers should not be concerned about losing their Android phone,” a Google spokesperson said in a recent phone chat. “There’s no indication that Android is under threat… We’re actively pushing back on Oracle to preserve choice in the marketplace in the long term.”

Still, as Oracle — an unquestioned heavyweight in the patents department — and Google head to court, it’s hard not to cringe a bit when we think about how Android could get mangled in the process.

We’ve reached out to Google for an update on the lawsuit and will keep you posted as this story develops.

Image courtesy of laihui.

July 9-10, 2013
San Francisco, CA

Early Bird Tickets on Sale

Earlier this morning, we published statements from Google chairman Eric Schmidt in which the executive said an acquisition of Motorola Mobility would not constitute an unfair advantage for the phone manufacturer.

Being journalists and generally rational people, we were skeptical, to say the least.

After all, Google had given Motorola time-to-market advantage and early access to the Android codebase in the past. If an acquisition were to go through, how in the world would Google not be able to give Motorola Mobility an unfair advantage?

Does it make sense that one company would not give another part of itself every opportunity to profit?

We turned to Google for more explanation of Schmidt’s words, in particular, the part where he said, “The Motorola deal will close and we will run it sufficiently and independently, that it will not violate the openness of Android.”

Google’s “lead device” strategy

First, we mentioned some court documents that had been made public. Those documents stated that Google would “give early access to the software partners who build and distribute devices to our specification (i.e., Motorola and Verizon). They get non-contractual time to market advantage, and in return they align to our standard.”

While there is a significant difference between i.e. and e.g., especially for the purposes of this reading, we had a chat on background about the meaning of this particularly hard-to-swallow passage.

What was explained to us is that Google has rolled out every new iteration of Android with a “lead device.”

As Android chief Andy Rubin put it during a conference over the summer, “What we do is pick our partners (a semiconductor partner, an operator and an OEM) and then combine them all together. This is the device that engineers have on their desk when they come in the morning.”

For example, with the launch of Ice Cream Sandwich, a.k.a. Android 4.0, Google gave time-to-market advantage to one original equipment manufacturer (OEM) and one carrier: Samsung and Verizon, who together launched the Galaxy Nexus. For Honeycomb, a.k.a. Android 3.0, the OS targeted at tablets, Google favored Motorola, and the Xoom was launched.

Going back to Android 2.0, Motorola and Verizon were let into the fork early and produced the original Droid. Samsung and T-Mobile launched Android 2.3 with the Nexus S. And Google worked with HTC and T-Mobile to launch its flagship Android device, the Nexus One.

While it is hard to imagine that Motorola Mobility would not have early access to all future Android forks, Google does have a history of spreading early access pretty fairly among all OEMs. And it would be dangerous for them to disavow this precedent for one critical reason.

What Google is too smart to risk

If Google did decide to favor Motorola, it would instantly lose the support of every other Android device maker. And the sole reason Android has become such a popular choice is its diversity.

Android owners can name their carrier, their OEM, their specs — even their price point. The bane of developers (the wide divergence in the Android diaspora) is the boon of its consumers. And that diversity would shrivel if OEMs like Samsung and HTC thought they were getting shafted by the OS maker and a preferred OEM.

After all, it’s not as if OEMs don’t have options.

Lest we forget, while Android is currently the fastest-growing and debatably most popular smartphone OS, there is another mobile operating system waiting in the wings to steal any share of the spotlight it can: Windows Phone 7.

Though the tech press loves to hate on all things Microsoft, we’ve previously called Windows Phone 7 a sleeper hit. While lagging in adoption, the hardware is beautiful and the design is magnificent. Right now, Nokia is putting all its eggs in the Windows Phone basket, and the Microsoft team is confident that given enough time, the platform will catch up.

So for Google, careful parsing out of early access on a version-by-version basis isn’t only fair; it’s vital to Android’s survival.

As Rubin stated in a recent investor’s call, “We don’t expect that [lead device strategy] to change at all. The acquisition is going to be run as a separate business; they will be part of that bidding process and part of that lead development process. And obviously Android remains open to other partners to use as they are today.”

What Google is too smart not to grab

So then why would Google endanger that carefully balanced peace with OEMs by acquiring one of them?

In most cases, when journalists have questions, we follow the money. In this case, however, we’ll first follow the lawsuits.

Android is under attack from several corners at once, most notably Microsoft and Oracle, which are waging entrenched patent law warfare against Google and its Android partners.

Both of those much older companies hold around 20,000 patents each. As a further example, IBM, one of the oldest technology companies still doing business, actively controls more than 26,000 patents in the U.S. and 40,000 worldwide.

When the Android patent suits began, Google held fewer than 1,000 patents altogether. While the company generates a wealth of intellectual property, its culture has publicly and historically espoused ideals of freedom over concepts of legal ownership of ideas. While that’s in accord with Google’s unofficial “don’t be evil” motto, it doesn’t hold much water in the quite official proceedings in court.

Google bought around 1,000 IBM patents in July and around 1,000 more in September. But the matter is more sophisticated than a my-stack-of-patents-is-bigger-than-your-stack-of-patents contest. To get closest to the issues at hand vis-a-vis Microsoft and Oracle (which owns the codebase for Java, the language upon with Android is built), Google needed to grab a huge number of patents directly related to the business of building cell phones and mobile operating systems.

What better target for acquisition, then, than Motorola?

Motorola Mobility was spun off in late 2010. At that time, this reporter noted that the Droid line (powered by Android) had been the OEM’s biggest success since the Razr in 2004, before the mass-market advent of smartphones.

Plus, Motorola holds some of the progenitors of cell phone intellectual property. In the 1940s, Motorola invented the walkie-talkie for military use. In 1946, the company worked with Ma Bell to launch the first commercial mobile telephone service in the United States.

The history of cell phones is replete with Motorola firsts, and that means the company has a rich vein of patents for Google to mine: around 17,000 held patents with an additional 7,500 patents pending approval.

Only thus can Google protect Android from an expensive death by patent law — and Android’s survival is a matter quite close to Google’s heart.

“From a consumer standpoint, consumers should not be concerned about losing their Android phone,” one Googler told us last month in an interview. “But they should be concerned with the way in which Oracle is taking a platform they supported for years [the Java programming language] and is now trying to capitalize on our success.”

Stay tuned for more coverage of the Motorola Mobility acquisition and Android’s struggles in court.

Images courtesy of laihui.

Sources close to the matter tell us the trial, which was previously scheduled to begin on October 31, had to be put off because of the judge’s full schedule, which includes a particularly thorny gang trial.

Also, the U.S. Patent and Trademark Office (USPTO) is still in the process of reexamining the patents and claims in question.

While many of us do not imagine the lawsuit will actually end in a trial but rather, as many corporate disputes do, in a settlement, the judge in the case had already ordered three mediation hearings. A Google spokesperson told VentureBeat today that all of those hearings have already taken place, and, as he said, “Nothing was settled.”

Google has been shown to be open to the idea of settling out of court. However, the search-focused company may actually be at some degree of fault — the operative word being “may.” And if Oracle can wrest prohibitive licensing fees out of Android sales, it might make a significant dent in the OS’s profit margins.

We asked our Google source whether the Android operating system itself was in danger of, at worst, coming to a premature close, as many consumers have worried throughout the initial findings of this lawsuit.

“Absolutely not. There’s no indication that Android is under threat,” said the Googler.

“From a consumer standpoint, consumers should not be concerned about losing their Android phone. But they should be concerned with the way in which Oracle is taking a platform they supported for years [the Java programming language] and is now trying to capitalize on our success.”

Oracle has owned and maintained the open-source Java language since its acquisition of former Java owner Sun two years ago. However, Android is also Java-based and has roundly crushed the Oracle-owned Java ME mobile OS. As you can imagine, that hasn’t gone over too well with Oracle, and the resulting lawsuit has raised massive questions about how intellectual property law comes into play when open-source software is on the line.

“We’re actively pushing back on Oracle to preserve choice in the marketplace in the long term,” said the Google rep, who repeated Google’s well-known intentions about keeping the Android operating system open-source.

Related articles

• Google’s patent plot thickens with new Microsoft lawsuit against Motorola Mobility (venturebeat.com)
• Google ups its Android patent defense with Motorola purchase (venturebeat.com)
• Sun Was Close to Licensing Java Patents to Google for $28M (pcworld.com)
• Oracle v Google: Ellison, Schmidt, and Page to take witness stand over Android (guardian.co.uk)

First, a Google engineer admitted he may have copied Sun’s code in his work on Android.

Also, Google documents show the company worked to give Motorola and Verizon early access to new versions of Android, known as “forks” — and a significant time-to-market advantage along with it.

And finally, we learned that Sun at one time wanted to walk away from its $100 million per year mobile licensing business to create open-source, Red Hat-style distributions of Android under the GPL.

These are three of the bombshells that have fallen so far in Google’s legal entanglement with Oracle, the current owner of Sun Microsystems and the Java computer programming language. As depositions begin and documents are filed with the courts, we’re learning a lot about Android’s true history, and the evidence and statements are painting a much more complex picture than a friendly green robot offering mobile OS freedom to consumers.

Anti-trust claims with Motorola

The most significant of these admissions is one that has less impact on Google’s fight with Oracle and more bearing on the company’s proposed acquisition of Motorola Mobility.

“There’s never been a level playing field even before Google owned a handset maker,” said open-source patent expert Florian Mueller, who’s been following the cases carefully. “I think it’s a safe assumption to say that it can only get worse once Google competes with other device makers.”

Essentially, the key document reads that part of Google’s plan for Android, and how to profit from a free operating system, included the following:

Do not develop in the open. Instead, make source code available after innovation is complete.

Give early access to the software partners who build and distribute devices to our specification (i.e., Motorola and Verizon). They get non-contractual time to market advantage, and in return they align to our standard.

This amounts to what Mueller calls a “secret fork” of Android to which only the privileged (and compliant) few would have access — a factor that would have ensured the success of the Droid lineup.

“Some of the material that surfaced in the Oracle case may be seen by regulatory agencies that now have the proposed acquisition of Motorola Mobility before them and have to evaluate its implications for competition,” he wrote to VentureBeat.

This all might add up to some rather substantial anti-trust claims, said Mueller. “The concern here is not just about what may or may not be considered fair. It’s about whether Google’s proposed acquisition of Motorola Mobility would significantly impede competition in the future.”

Stealing Sun’s code? Maybe

The other issue uncovered early in deposition is more relevant to Oracle’s lawsuit claiming copyright and patent infringement in the code of the Android operating system.

In depositions, Google engineer and former Sun employee Joshua Bloch was asked to comment on nine lines of Android code that are identical to code owned by Sun. When asked whether he accessed Sun’s code while working on the given Android block of code, Bloch said, “I’m perfectly willing to believe that I did. I think the similarity of the signature, the fact that the three arguments are in the same order and have the same name, is a strong indication… that I did.”

Given this and other testimony, said Mueller, “It won’t be hard for Oracle’s trial lawyers to portray Google as a reckless, willful infringer of intellectual property.”

Of course, the Sun code in question is open-source, leaving many folks wondering why anyone’s being sued at all over the code it contains. However, the issue comes down to the intricacies of the GNU General Public License under which Sun’s code has been published.

“The GPL requires everyone to publish derivative works, such as enhanced versions, under the same license,” Mueller explained. “Google didn’t want that. There’s another category of open source licenses — so-called permissive licenses — that allow closed-source versions and extensions, which is exactly what Google and many of its OEMs do.”

We’re keeping close tabs on the ongoing lawsuit and its implications for Android, currently the fastest-growing and most widely used smartphone operating system. If Oracle wins the suit, the effects on the Android ecosystem could indeed be drastic.

July 9-10, 2013
San Francisco, CA

Early Bird Tickets on Sale

The string of Android-related patent lawsuits is heating up with a new complaint brought by Microsoft against Motorola Mobility.

Motorola Mobility is Google’s latest acquisition and maker of some of the most popular and successful Android phones.

Microsoft is alleging the infringement of seven patents and is asking for an injunction on the importation of Droid 2, Droid X, Cliq XT, Devour, Backflip and Charm mobile devices.

“Investing in a broad and truly open mobile ecosystem is important for the industry and consumers alike, and Windows Phone is now the only platform that does so with equal opportunity for all partners,” said Windows Mobile president Andy Lees to VentureBeat in an email.

As that rather cryptic message indicates, the lawsuit is a none-too-subtle jab at the Android operating system and Google as much as at Motorola Mobility, which will now undoubtedly benefit by a closer relationship with its new owner.

Over the weekend, we noted that it might be in Google’s best interest to take up the offense with its newly acquired Motorola patents.

The patents themselves number 17,000, with around 7,500 pending approval. And as several patent attorneys told Bloomberg today, a handful of those patents might prove extremely useful in the growing pile of anti-Android patent complaints.

Today’s suit from Microsoft has a provenance that precedes the existence of Motorola Mobility as a separate entity. Microsoft first launched a roundabout Android attack via a Motorola patent suit back in the fall of 2010. At that time, Microsoft’s deputy general counsel Horacio Gutierrez said the patents relate to features and functions in Motorola’s Android phones that were “essential to the smartphone user experience.” The specific features included scheduling meetings, maintaining calendars and contacts, synchronizing email, and reporting battery life and signal strength changes. Around the same time, Microsoft also sued Motorola for inflating royalties for some of its Xbox-related technologies.

A month later, Motorola fired back at Microsoft with a lawsuit of their own, alleging the infringement of 16 patents involving Windows for PCs, Windows mobile OS and Xbox.

Now, however, the relatively recent split of Motorola Mobility from Motorola Solutions — not to mention Google’s acquisition of Motorola Mobility — may have prompted a refresh and reorganization of the complaints. And as far as asserting a proactive position on the Motorola patents is concerned, Microsoft has clearly beaten the Android parent company to the punch.

As noted at the beginning of this article, this lawsuit is just the most recent in a parade of complaints against Google’s open-source Android OS and the handset manufacturers that use it. Apple has embroiled itself in patent warfare with HTC (HTC has duly countersued. And Oracle has sued Google directly, claiming patent violations in Java-related portions of the operating system itself. Google may choose to settle with Oracle, or it may choose to countersue, as well, armed with new patents from IBM and Motorola Mobility.

But one thing is for certain: The idea of an open-source operating system isn’t sitting well with anyone in particular right now, and a soft-on-patents, do-no-evil approach on Google’s part has left the company vulnerable and bleeding in shark-infested waters.

July 9-10, 2013
San Francisco, CA

Early Bird Tickets on Sale

Google’s announcement this morning that it’s acquiring Motorola may have come as a surprise, but it certainly makes a lot of sense: Google has been wanting to get its hands on a stash of mobile patents for months, and it’s finally got them with Motorola.

Google and its Android manufacturing partners have been in court battles with companies like Microsoft and Apple over patents that the Android OS supposedly violates. Motorola Mobility’s patent portfolio gives Google the power to fight back more effectively against those claims.

Motorola Mobility has some 17,000 patents, and Moto has another 7,500 patents pending approval. That makes for one heck of a shield when other companies try to attack Android.

Google’s shown some desperation lately when it comes to getting patents. It bid $900 million on Nortel’s 6,000-strong patent portfolio but was considerably upended when a consortium including Microsoft, Apple, and RIM bought the portfolio for $4.5 billion. And Google declined to take part in a joint bid for Novell’s patents with Microsoft and co. because it wouldn’t stop other lawsuits from coming.

Google CEO Larry Page wrote this morning:

“We recently explained how companies including Microsoft and Apple are banding together in anti-competitive patent attacks on Android. The U.S. Department of Justice had to intervene in the results of one recent patent auction to “protect competition and innovation in the open source software community” and it is currently looking into the results of the Nortel auction. Our acquisition of Motorola will increase competition by strengthening Google’s patent portfolio, which will enable us to better protect Android from anti-competitive threats from Microsoft, Apple and other companies.”

As of mid-July, more than 550,000 Android devices are being activated every day, with around 39 manufacturers and 231 carriers supporting the OS. With such a staggering number of devices being churned out and Android’s position as the number one smartphone OS in the world, you can see why other companies are doing whatever they can to slow it down.

These attacks against Android partners have been countless. Apple has been waging a battle against Samsung since April over its popular Android-based Galaxy phones and tablets. Apple also has been fighting with HTC, and the threat of banning HTC’s Android devices from the U.S. still looms. And then there’s Microsoft, which is using its patents to coax Samsung, HTC, and other partners to cough up $15 per Android device manufactured.

Google was so agitated by these attacks that David Drummond, Chief Legal Officer at Google, said Android’s success had produced “a hostile, organized campaign against Android by Microsoft, Oracle, Apple and other companies, waged through bogus patents.” Drummond said these companies were not competing by building better devices and services, but fighting through litigation instead.

Other Android manufacturers have expressed a measure of support (at least publicly) concerning Google’s big buy because it gives Google a stronger legal defense for Android. “We welcome the news of today’s acquisition, which demonstrates that Google is deeply committed to defending Android, its partners, and the entire ecosystem,” HTC CEO Peter Chou wrote in a statement this morning. The CEOs of Samsung, Sony Ericsson, and LG all said essentially the same thing, without mentioning that Google just became a hardware competitor as well.

What do you think of Google’s purchase of Motorola? Do you think Google will have a better shot at defending Android in court with Motorola’s patents behind it?

If Oracle’s claims (that Android violates patents in Oracle’s Java programming language) are found to be valid in a trial, Google could end up paying between $1.4 and $6.1 billion, depending on whether the alleged infringement was willful or unintentional.

Google’s most recent statement hinting at the possibility of an out-of-court settlement, which was tellingly made in a publicly filed document rather than in private talks with Oracle, suggests that Google thinks it might save a few billion dollars by giving Oracle some ideological leeway.

Free and open-source software (FOSS) advocate and IP law expert Florian Mueller told VentureBeat in an interview that althought Google has “pushed the envelope” on patent law with smaller companies — such as former Java owner Sun used to be before it was acquired by Oracle in 2009 — it won’t have the same leeway with a giant like Oracle.

“I don’t think Oracle wants to kill Android,” said Mueller, “but what it does could nevertheless have major impact.”

Last year, Oracle asserted that Google had knowingly and willfully infringed on Java copyrights and patents in its creation and distribution of the Android platform.

Google first embarked on a rather facile line of defense, invoking the fact that Oracle’s Java programming language is open-source software. Later, the company stated that no patents were violated, and if they were, the fault lay with third parties, not with Google.

However, this hard-and-fast rejection of fault is beginning to waver. In Google’s most recent filing, the company stated that certain conditions in the proceedings would “make it more likely that the parties could reach an informal resolution of the matter.” For the first time, Google is entertaining the possibility of settling out of court — in exchange for Oracle dropping some of its claims and, perhaps, its option to collect a per-unit royalty.

The trial is slated to start in October and continue for three weeks. Google is requesting a stay of the case, a move Oracle vehemently opposes.

Seven patents and a string of copyright claims are in question at the moment. Currently, the U.S. Patent and Trademark Office (PTO) has issued non-final rejections against four of those seven patent claims, and two of the claims are up for reexamination. One claim has been confirmed as valid by the PTO.

“Oracle wants to make a substantial amount of money,” said Mueller, “and Google may not be able to meet Oracle’s demands without being forced to change Android’s business model in terms of abandoning the current royalty-free approach in favor of a license fee that would have to be passed on to device makers.”

Oracle’s per-unit requests surfaced early in the suit, and given that, according to Mueller, Google makes less than $10 per Android device, any per-unit fee would have a significant impact on the Android bottom line.

Microsoft, meanwhile, has signed patent-licensing agreements with the manufacturers of many Android phones, with the ironic result that Microsoft makes more money from Android than it does from Windows Phone 7.

We’ll continue to monitor this case as it evolves.

Image courtesy of isriya.

July 9-10, 2013
San Francisco, CA

Early Bird Tickets on Sale

The spat between tech giants continues with Oracle updating its lawsuit today, stating Google stole Oracle’s Java code for its Android mobile operating system.

Oracle is suing Google over the use of a third of Android’s Application Programming Interfaces (APIs) — which Oracle says are “derivative of Oracle’s copyrighted Java API packages.” Oracle filed the original lawsuit in early August.

Patent trolling seems like the thing to do this month when it comes to tech giants, as Oracle is not the only entity trying to sue the pants off of companies like Google. Microsoft co-founder Paul Allen is also attempting to shark everyone from Facebook to Google on down. Even VentureBeat’s Dean Takahashi, a traditionally stoic master of video games, is sick of the shenanigans.

Google already vowed to take on Oracle and block the lawsuit, saying the original accusations were baseless when they first surfaced in August.

But Oracle itself is no stranger to being targeted for lawsuits. Earlier this year, Oracle finalized its acquisition of server manufacturer and Java developer Sun Microsystems in a deal worth $7.4 billion, though the official announcement came in April last year. The European Commission had investigated the deal later that year over concerns that Oracle, a maker of commercial database management software, would stifle the MySQL open source database management software business within Sun.