John Paczkowski

Recent Posts by John Paczkowski

Old Java Emails May Bite Google in Android Patent Suit

It may be wiser for Google to settle its patent infringement showdown with Oracle than take it to trial. New documents emerging from early hearings in the case suggest the search giant may have a tough time mounting a “no willful infringement” defense against Oracle’s claims that the Android operating system infringes its Java patents.

The first bit, as noted by FossPatent’s Florian Mueller, is a passage from an October 2005 email written by Andy Rubin, Google’s senior VP of mobile, concerning Sun, which held the patents at issue here before being acquired by Oracle.

“If Sun doesn’t want to work with us, we have two options: 1) Abandon our work and adopt MSFT CLR VM and C# language – or – 2) Do Java anyway and defend our decision, perhaps making enemies along the way.”

There are alternate readings, I’m sure. Rubin here could have been referring to the Java programming language, which is open and free (in which case his prediction about making enemies is surprisingly prescient). But the most obvious is that Google knew it needed a Java license, but chose not to negotiate one. As William Alsup, the district court judge presiding over the case, observed in a court order, “Google may have simply been brazen, preferring to roll the dice on possible litigation rather than to pay a fair price.”

The others, read aloud by Alsup during a hearing in San Francisco last week, are equally — if not more — damning. The first, a 2005 message from Rubin to Larry Page in which Rubin says his team is “making Java central to Android” and proposes that the company “take a license.” The second, this email from Google engineer Tim Lindholm (who was previously a senior Java engineer at Sun) to Rubin in August of 2010:

“What we’ve actually been asked to do (by Larry and Sergey) is to investigate what technical alternatives exist to Java for Android and Chrome. We’ve been over a bunch of these, and think they all suck. We conclude that we need to negotiate a license for Java under the terms we need.”

As Alsup told Oracle’s attorneys moments after reading it in open court, “That’s a pretty good document for you. That ought to be … big for you at the trial.”

Indeed — particularly if Rubin has to explain it on the stand.

“You know what they used to say about Joe Alioto,” Alsup said, referring to the successful antitrust attorney. “In a big case like this, he only needed two documents: He needed a document like this, the one I just read, and the Magna Carta. And he won every case. And you are going to be on the losing end of this document with Andy Rubin on the stand. … If willful infringement is found, there are profound implications for a permanent injunction. So you better think about that.”

[Image credit: Flickr/Hella TJ]


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