Wednesday, May 9, 2012

Oracle v. Google - Copyright & Patent Trial

The focus of the Oracle v. Google trial has clearly shifted to the patent phase: US Patent No. 6,061,520 to Yellin et al. and US Reissue No. 38,104 to Gosling.

However, considerable commentary exists on the undecided copyright issues. See FOSS Patents here and Groklaw here. It sounds like the major copyright issues will not be decided until Judge Alsup rules on whether or not Java API's are copyrightability (e.g., due to the doctrine of compatibility), Google gets a new trial on the "indivisible" question of infringement and fair use of the Java APIs or Oracle and Google stipulate Judge Alsup can decide the issue of fair use.

In the meantime, Oracle's trial lawyer questioned Mr. Rubin's decision to ignore the Sun patents while developing the Android OS. It may be intended to make Mr. Rubin look irresponsible, but many engineers ignore patents to avoid knowledge supporting willful infringement and potentially enhanced damages. Professor Lemley's Ignoring Patents suggests Mr. Rubin merely follows conventional practice. Although some companies develop non-infringement positions, many ignore patents, and learn they infringe (e.g., before an IPO) and it is expensive to invalidate a patent in court. Hopefully, this high profile case will convince companies to think about reviewing patents, designing around, and requesting post-grant procedures as part of the software development process.

Mr. Rubin's saying there are "hundreds of millions of patents" to consider begs the question: Did Google patent attorneys make any effort to design around the Sun Java patents? Is it even possible to implement the Android OS while not infringing the Java patents? Answers may have to await phase 3 on damages.

Also see the following articles for more details:

Copyright © 2012 Robert Moll. All rights reserved.