Bloomberg News is reporting that the jury has been dimissed, and that there will be no third phase of the trial, which was to have focused on damages in the event that Oracle prevailed.

The win for Google in the patent phase comes on top of a narrow but hollow victory for Oracle, in which the enterprise software giant won a part of its argument, but failed to make it stick in a way that would make any difference to either company.

Asked to decide whether Google had infringed upon Oracle’s copyrights to certain parts of the Java programming language, the jury — the same jury that came out in Google’s favor today — agreed that it had. Then asked to decide on four specific examples of that infringement, jurors could agree on only one that cracked the threshold of being sufficiently egregious to warrant any damages. And in that case, the damages amount to no more than $200,000, probably less than it cost to litigate in the first place.

Google shares rose slightly by $2.09 to $602.89 or less than 1 percent. Oracle shares fell slightly by 6 cents to $26.30.

Oracle put out this statement:

Oracle presented overwhelming evidence at trial that Google knew it would fragment and damage Java. We plan to continue to defend and uphold Java’s core write once run anywhere principle and ensure it is protected for the nine million Java developers and the community that depend on Java compatibility.

Meanwhile, here’s Google’s statement, which reads like a victory lap:

Today’s jury verdict that Android does not infringe Oracle’s patents was a victory not just for Google but the entire Android ecosystem.

Asked to decide whether Google had infringed upon Oracle’s copyrights to certain parts of the Java programming language, the jury agreed that it had. But then, when asked to decide on four specific examples of that infringement, jurors could agree on only one: The rangeCheck method in TimSort.java and ComparableTimSort.java. Don’t ask me to explain exactly what it is, but it is being described widely as “nine lines of code.” And, unfortunately for Oracle, the damages it can collect are limited to somewhere in the neighborhood of $150,000 to $200,000, or less than pocket change for either company, not the $1 billion or more Oracle had said it wanted.

Jurors were also unable to decide if the portions of Java code that it copied could be protected by the long-established doctrine of Fair Use, under which certain infringements can be excused. Google lawyers pounced on this, and said they would move for a mistrial.

The conclusion is that Oracle proved at least part of its argument, but failed to prove the dramatic injury it said it had suffered. It also proved that Google knew that it needed a license to Java in order to use the portions of Java that it did use. The complication there was the fact that one flavor of Java is compatible with other flavors of Java: It still operates under the old “write once, run anywhere” principle that Sun Microsystems envisioned when it created Java. Oracle still wants Google to take out a commercial license that would require Google to maintain Java compatibility with other platforms.

Still undecided — and this is the big issue that has the eyes of the software industry watching this case closely — is whether Oracle can prevail on the issue of protecting software APIs using a copyright in the first place. Jurors were instructed to proceed under the assumption that this was a matter of settled law, when in fact it is not. Judge William Alsup will decide on this issue later, and it is unclear exactly how the jury verdict in the first phase of this case will affect his decision.

Had Oracle won a more ringing endorsement from the jury, that portion of the argument might seem to be stronger. It’s an important point that Google argued against, saying APIs shouldn’t be subject to copyright protection, because they’re more like tools and techniques that programmers use to build software. You can copyright a given program because it’s unique, but you can’t copyright the language it’s written in. The possibly strained analogy I came up with before is this: You can copyright a musical composition like Miles Davis’s “So What,” but you can’t copyright the form of music known as jazz.

Oracle argued at trial that copyright law offers the only proper protection for original expression in software, mainly because software advances are incremental, building upon previous advances and innovations. Laws governing trade secrets and patents don’t get the job done. Oracle lawyers contended that copyright law, while still imperfect, protects innovations and advances at a more granular level, but mainly against copying.

Also still ahead is the patent phase of the trial, where Oracle will assert that Google violated Java patents in building Android. After that, there will be a third phase, where the two parties will wrangle over damages. So far, it seems — unless Oracle prevails in the patent portion — that there won’t be much to wrangle over.

At least for now, it appears that Google has escaped the worst of Oracle’s accusations. That was the conclusion of shareholders of both companies. Google shares rose by more than 2 percent on the news of the verdict yesterday, closing at $607.55 a share. Oracle shares fell by more than 1 percent to close at $27.92 a share. The case isn’t over, and Google hasn’t exactly come out of it looking virtuous. But if the point of defending against a lawsuit is to escape paying huge monetary damages, Google won the day.

Embedded below is the filled-out jury questionnaire:

Verdict

As the AP has it, the jury has decided against Google on Oracle’s copyright claim, but has reached an impasse on some key questions. There’s obviously more to this story as it develops. I’ll be updating as soon as I know more.

Update: The jury sided in part with Oracle, ruling that the Android mobile operating system infringes on some Java copyrights. However, it was deadlocked over the question of whether that use constituted “fair use,” and was therefore protected. This impasse appears to be the basis for a mistrial motion that Google lawyers say they intend to file.

Oracle has not prevailed on every point and, in fact, it’s looking like a messy victory. The jury found code in two files to be infringing, and that some elements of Android application programming interfaces or APIs were similar to Oracle’s Java APIs.

Attorneys for Google told Judge William Alsup that they intend to file a motion for a mistrial because of the impasse over the “fair use” question. Alsup told both sides to be prepared to argue that motion, which will come later.

A few other things are coming up: Judge Alsup still has to rule on whether APIs can be copyrighted as a matter of law. Jurors were instructed to deliberate, assuming that they could be copyrighted.

There is a clear finding that Google has infringed on nine lines of code. This came in Question 3A, concerning something called RangeCheck in Java. They decided that Google hadn’t infringed on two other blocks of code. With the jury out of the room, Judge Alsup said that there is “zero finding of copyright liability” on anything other than the nine lines.

That’s good for Google, because Oracle’s own expert at trial said they’re not worth much. An Oracle attorney suggested that the company should receive a share of Google’s profits on top of regular damages. Judge Alsup rejected that as “bordering on the ridiculous.”

From Google:

“We appreciate the jury’s efforts, and know that fair use and infringement are two sides of the same coin. 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.”

And here’s Oracle’s statement:

“Oracle, the nine million Java developers, and the entire Java community thank the jury for their verdict in this phase of the case. The overwhelming evidence demonstrated that Google knew it needed a license and that its unauthorized fork of Java in Android shattered Java’s central write once run anywhere principle. Every major commercial enterprise — except Google — has a license for Java and maintains compatibility to run across all computing platforms.”

For reference, I’ve embedded the questionnaire that the jurors were required to fill out:

Jury Questions

Judge William Alsup is starting to talk about opening arguments for phase two of the trial, which will focus on patents. A third phase, assuming Oracle prevails, will focus on determining damages.

There was a false alarm late Friday when CNET and Bloomberg News reported that a partial verdict had been reached, when in fact it hadn’t. This happened after it became relatively clear that jurors were stuck and unable to agree on all four questions they have been tasked with answering.

Jurors have been asked to decide if Google’s use of 37 sections of Java source code — which Oracle owns, having acquired Sun Microsystems in 2010 — constitutes copyright infringement; or if, as Google argues, the copied sections are so insignificant as to amount to “no big deal.”

Oracle sued Google in 2010, after closing the Sun deal. Google stands accused of using some parts of Java to create Android without having first obtained the relevant licenses — first from Sun, then from Oracle — that, among other things, required compatibility with other flavors of Java.

Jurors have reached no conclusion in the case and Judge William Alsup has sent them home for the weekend with instructions to try again on Monday.

The jury had indicated Thursday in a note to Alsup that it was stuck on some point. Alsup warned lawyers for both sides that they might have to prepare for a deadlocked jury. Obviously, the situation here is fluid. I’ll have more in this post as it comes in.

There are four questions the jurors are tasked to answer, and they’re said to be unanimously agreed on three of them, but unable to reach consensus on the fourth, though its unclear which are which.

For what its worth, below is the form with the four questions the jurors have to answer.

Jury Questions

The Associated Press reported that a note to Judge William Alsup asked what would happen if jurors were unable to come to a conclusion, and indicated that some jurors are not budging from their positions.

Alsup called jurors into the courtroom for a talk, then sent them home so they could “start fresh” today. Bloomberg Businessweek reported that Alsup told lawyers that it’s possible the jury is deadlocked. If that’s what happens, Alsup said, the parties would move immediately into the second phase of the trial, which covers patents.

Jurors have been asked to decide if Google’s use of 37 sections of Oracle-owned Java source code constitutes a copyright infringement, or if, as Google has argued, the copied sections are so insignificant as to amount to “no big deal.”

Oracle sued Google in 2010, after acquiring Sun Microsystems and becoming the owner of the Java programming language. Google stands accused of using some parts of Java to create Android without having first obtained the relevant licenses — first from Sun, then from Oracle — that, among other things, required compatibility with other flavors of Java.

The jury has been deliberating since lawyers for Google and Oracle wound up their arguments on Monday.

(Image courtesy of Icanhascheezburger)

The jury has had the case since Monday, and as yet there’s no indication of when its deliberations will be complete.

The basic questions jurors are wrestling with concern whether and how it is or isn’t okay for a company to copy portions of software code that would otherwise require a commercial license. Also looming large over the proceedings is whether or not a programming language can by itself by protected by copyright. Oracle lawyers argued at trial that it can, but this is by no means a legal slam dunk.

Google lawyers, for their part, argued that the copying was insignificant, or “no big deal whatsoever.”

Oracle sued Google in 2010, after acquiring Sun Microsystems and becoming the owner of the Java programming language. Google stands accused of using some parts of Java to create Android without having first obtained the relevant licenses, first from Sun, then from Oracle, a license that among other things required compatibility with other flavors of Java.

Once the jury comes back, which could be as soon as today (but we thought that earlier this week), the trial will shift to a second phase over patents. After that, assuming Oracle prevails in one or both of the first two phases, a third phase will determine the amount of damages, if any. The full trial is expected to last two months.

Lots of people are waiting on the outcome of this first phase, however. To all of them, I dedicate Tom Petty’s “The Waiting.”

In his appearance, McNealy said that, as he remembers it, Google was asked to take out a commercial license on Java. “There is a Java specification license document available,” he said, that didn’t contain any financial requirements, but it did require compatibility.

McNealy had been called as a witness by Oracle, and on the stand he said that it was Sun’s practice to let other companies use Java, but only with a commercial license, and that its primary requirement was that the licensee ensure that Java remain compatible.

While numerous other phones from the likes of Nokia, Research In Motion and Motorola were compatible with Java applications, those on Android weren’t. Compatibility is one of the main points over which Oracle has been arguing with Google. Oracle contends that not only did Google violate its patents and copyrights, but it then went on to build its own incompatible version of Java, fracturing one of the oldest premises of Java’s existence: Write once, run anywhere.

McNealy is also running a poll on Twitpolls, asking people to vote for which side they agree with. (Google is ahead as of this morning.)

Who is right in the Oracle vs. Google lawsuit? reply w/ #oracle #google #neither #both http://t.co/aWdhzPbO

May 1, 2012 1:44 pm via GetTwitPollsReplyRetweetFavorite

@scottmcnealy

Scott McNealy

And he promotes a similar poll on his own new venture’s site, Wayin.com, where, as of this morning, the vote is favoring Oracle.

Meanwhile, the jury is still out, and the world is still waiting for a verdict. It could come today.

Anyhow, here’s the video of McNealy’s six-minute TV interview:

The jury in the Oracle-Google trial will begin its second day of deliberations today, following a round of closing arguments by lawyers for both sides.

From Oracle’s perspective, the basic question jurors will have to answer, as its lawyer Michael Jacobs put it, is whether it’s okay for one company to use another company’s intellectual property without permission. (See Jacobs’ slide deck, embedded below.)

Google attorney Robert Van Nest argued that the amount of Oracle IP that it used was so small as to be “no big deal whatsoever.”

Oracle sued Google in 2010, after Oracle acquired Sun Microsystems and thus became the owner of its Java programming language. Google is accused of using some parts of Java to create Android without having first obtained the relevant licenses, first from Sun, then from Oracle.

Monday’s closing arguments constituted the end of the first phase of the trial, which has also turned into a closely watched battle of the proper use of copyrights over software.

Once the jury comes back, which could be as soon as today, the trial will shift to a second phase concerning patents, after which a third phase will determine the amount of damages, if any. The full trial is expected to last two months.

Judge William Alsup, in his final instructions to the jury, reiterated the parameters of the case, telling panelists that copyright protection covers the “expression of ideas,” but not methods of operation. He said the copyrights Oracle has exerted cover the “structure, sequence and organization” of software code.

Google has argued that APIs shouldn’t be subject to copyright protection because they’re more akin to tools and techniques that programmers use to build software.

Oracle has argued that copyright protections should apply because they’re more granular and targeted than trade-secret law or patents.

day11-closing-1609612

(Image courtesy of icanhascheezburger.com)

Of the two, Jonathan Schwartz, Sun’s last CEO, spent the most time on the witness stand. Called by lawyers for Google, he bolstered Google’s argument that it was free to use parts of Java as it assembled its Android mobile operating system.

Scott McNealy, called by Oracle, said it was Sun’s practice to let other companies use Java, but only with a commercial license, the primary requirement of which was that the licensee ensure that Java remain compatible.

While numerous other phones from the likes of Nokia, Research In Motion and Motorola were compatible with Java applications, those on Android weren’t. Compatibility is one of the main points over which Oracle has been arguing with Google. Oracle contends that not only did Google violate its patents and copyrights, but it then went on to build its own incompatible version of Java, fracturing one of the oldest premises of Java’s existence: Write once, run anywhere.

Schwartz said he had hoped that Google would take out a commercial license, but in the end, he said, according to a report on CNet News, Sun opted “to grit our teeth” and support it as part of the Java community. He said that he opted not to sue Google over the issue.

Oracle also presented as evidence an email from Schwartz, describing Google as having taken Java “without attribution or contribution,” and then went on: “This is why I love scroogle,” referring to a now-defunct Web-search service that served up Google-like search results anonymously. See it below.

Andy Rubin, Google’s senior vice president of mobile, was shown during his testimony at a trial in San Francisco a series of emails he wrote about six years ago advising others at Google that the company should buy the right to use Sun Microsystems’ Java technology in Android.

Read the rest of this post on the original site »

Oracle CEO Larry Ellison will take the witness stand today in his company’s lawsuit against the search giant Google. In what has been described as the World Series of intellectual property lawsuits, Ellison will be examined by Oracle lawyers in the case, in which Oracle has accused Google of infringing both patents and copyrights on Java while it was working to create the Android mobile operating system.

Ellison’s testimony will come after Oracle lawyers make their opening arguments. You can get a pretty good idea of what they’re going to say from this 91-page PDF posted overnight to the Oracle Web site.

Oracle sued Google in 2010, alleging that the Android mobile operating system violated seven different Java patents. Five of those patents have since been tossed out since they were reexamined, leaving two. That reduces the potential amount of damages Oracle might be entitled to should it prevail. Google offered Oracle a share of Android revenue and $2.8 million in damages in the event that it prevails; Oracle declined. Oracle has also accused Google of infringing copyrights on Java APIs.

Google has denied the infringement claims, and is expected to argue that Java APIs can’t be protected by copyright because they’re more akin to programming languages. Software developers everywhere are paying close attention to this part of the trial.

The parties are the software giant Oracle and the Internet concern Google. At issue is Java, the software platform Oracle became owner of when it acquired Sun Microsystems in 2010. And the witness list will be interesting: Both Google CEO Larry Page and Oracle CEO Larry Ellison are expected to take the witness stand during the trial; as will former Sun CEO Jonathan Schwartz and Andy Rubin, the Google senior vice president who runs its Android and mobile operations.

The allegations are fairly simple, but the case could have some significant impact if Oracle prevails in some of its arguments. Oracle sued Google in the summer of 2010, alleging that the Android mobile operating system violated seven different Java patents.

Five of those patents have since been tossed out since they were reexamined, leaving two. That reduces the potential amount of damages that Oracle might be entitled to, should it prevail. Google even went so far as to offer to cut Oracle in on Android and $2.8 million in damages, in the event that it prevails. Oracle declined.

The other issue, and the one that has the potential for more lasting impact, is over copyright. Oracle will argue in court that Google violated copyrights on Java. Specifically, Oracle alleges that when Google was creating Android, it copied a lot of material — more than 37 Java application programming interfaces (APIs), and 11 lines of Java source code — and that these are subject to copyright protection like other intellectual property.

This is a new and controversial legal argument that has software developers watching the trial closely. Google has argued that APIs shouldn’t be subject to copyright protection, because they’re more akin to tools and techniques that programmers use to build software. I may be simplifying it a little too much here, but one way of thinking might be to ask if it’s possible to copyright the technique and instructions for hammering a nail or fitting a door.

Google has argued that APIs and programming languages aren’t entitled to copyright protection, for exactly that reason: You can copyright a given program because it’s unique, but you can’t copyright the language it’s written in. Perhaps I’m straining my skills at analogy here, but the way I understand Google’s argument, as put forth in an April 12 brief, is that you can copyright “So What?” but you can’t copyright “jazz.”

As Google puts it in that brief, which is the first two of two legal filings I’ve embedded below:

“That is a classic attempt to improperly assert copyright over an idea rather than expression.” And earlier in the brief, it argues: “Without a computer programming language, the set of statements or instructions cannot be understood by the computer. As such, a computer language is inherently a utilitarian, nonprotectable means by which computers operate. … The protectable material is the computer program (the set of statements or instructions); the unprotectable material is the method or system (the language). So understood, original computer programs may be protected, but the medium for expression in which they are created is not.”

For its part, Oracle outlined its position on the issue in a trial brief filed on April 5, which is the second of the two documents embedded below. Here’s a meaty paragraph summing it up:

“Allowing copyright protection for computer interfaces makes sense because original expressions in software are innovations of an incremental sort that Congress meant to encourage. Trade secrecy law cannot achieve this goal because interfaces can be reverse-engineered. Patent law, because of its novelty and non-obviousness requirements and examination process, protects those substantial innovations, claimed as broadly and generically as possible, and in return gives strong protection against even those who independently develop the same technology. Copyright law protects innovations at a much finer level of detail (where original expression can be found) than patents ever could, but only offers protection against the copyist.”

Obviously, it’s going to be an interesting trial, provided the parties don’t find some way to settle before it’s all over. They tried settlement talks once. It didn’t work.

Google Brief

Oracle Brief

That remains the reality, even after a bunch of media reports on how a vulnerability in Java has led to the creation of a Mac botnet about 600,000 strong.

Today I’ve been getting calls from people who say something roughly in line with the following: “I thought you said Macs didn’t get viruses? What about this?”

No, I explain, I never said Macs will never get viruses or other Malware. But historically its record versus other platforms compares favorably. As is the case with investment instruments, past results are no guarantee of future performance, and let’s face it, there’s no such thing as a perfectly secured computing platform.

But let’s look closely at the facts around the Flashback Trojan causing all this consternation, and clear up what it is versus what it is not, and put the results of the incident in perspective.

Yes it’s true that some 600,000 Macs are confirmed to have been infected. The claim, first made by Dr. Web, an outfit I had never heard of, has since been corroborated by Kaspersky Labs, whose research and analysis capabilities are well-respected. More than half of the compromised machines are in the U.S., 95,000 in Canada, 47,000 in the U.K., and 41,000 in Australia.

The trojan targets a vulnerability in software that is not even an Apple product: Java. You’ll recall that Java is add-on software created by Sun Microsystems and now the property of the software giant Oracle. Rather common, it is no longer shipped as a default add-on to Apple’s Mac OS X beginning in 2011, when Apple first shipped Lion.

Through this hole in Java, certain Web sites are serving up malicious Java applets. Once inserted on the machine, the software then prompts the user to enter the password they use to run the machine. It attempts to trick the user by appearing as an update to Adobe’s Flash video and animation software.

If the user doesn’t fall for the trick, it tries something else. Here again it checks to see if there are any Microsoft Office applications on the machine, or Skype. If there are, it deletes itself.

Then it does something interesting. It scans the contents of the Mac’s hard drive to determine if certain applications are present, and if they are, it deletes itself. Among those applications are security tools such as Little Snitch, a networking security tool, or Packet Peeper, another security tool. It also deletes itself if it sees the user has installed XCode Mac developers tools, and any kind of anti-virus software.

Presuming it finds none of them, it proceeds to contact a command-and-control server for the purpose of downloading and installing more malware. That malware is being used to commandeer the Macs and generate Web traffic to boost revenue for some pay-per-click ads on Web sites, making money for someone who’s behind the scheme. Nothing surprising there.

Apple has issued a fix to Mac OS X that closes the hole in Java, and you can protect yourself by running Software Update from within your machine’s System Preferences. Today would be a good day to do that if you haven’t already. Once you’ve done this you’re no longer vulnerable to the attack.

If you’re among the 600,000 already compromised you can turn to third parties to help you remove it. F-Secure has some instructions here for determining if your machine is affected. If you’re comfortable running some commands in the Mac’s terminal program, there are also some good instructions here at ArsTechnica.

So what does all this say about the state of security on the Mac? Nothing that wasn’t true already. No system is perfectly secure, and this, along with MacDefender, amounts to exactly the second security incident worth mentioning to hit the Mac in about a year. The number of machines affected is less than 1 percent of the 63 million Macs currently in use around the world.

The conventional wisdom has often held that Macs are targeted by malware less often than Windows machines because of their relatively small market share. This still has some merit, but the fact is that Windows is also where the vulnerabilities are. Historically, Mac OS X has been substantially less vulnerable to this sort of thing than Windows.

Does that let Apple off the hook entirely? No, though to its credit, Apple had a fix ready within a week of learning of this vulnerability. That’s not exactly a pokey response, especially when the problem lies not directly within Apple’s software, but in Oracle’s.

Here’s a thought: Turn off Java in your Web browsers. You probably won’t miss it. Here’s some instructions for that.

Details of the back-and-forth emerged in a filing made by lawyers for the two companies, proposing ways to speed up the trial process. (See the filing embedded below.) Their trial over Java — of which Oracle became owner when it acquired Sun Microsystems in 2010 — is set to begin in less than three weeks.

There are basically two patents left at issue in the case, and Google proposed to forgo fighting Oracle in the event it won and proved infringement. Oracle said the $2.8 million figure Google offered — $2.72 million for one patent, and $80,000 for the other, for past damages — was too low: “Oracle cannot agree to unilaterally give up its rights, on appeal and in this Court, to seek full redress for Google’s unlawful conduct,” the company says in the filing.

Google also offered Oracle a 0.5 percent of Android revenue through the end of this year, when one of the disputed patents expires; and 0.015 percent of revenue for the other, when it expires in 2018. “Under such a stipulation, Oracle would be assured a recovery without proving damages, but could not obtain an injunction based on these patents,” Google says in the filing.

Goog Orcl Streamline

So what happened? A few things, as Oracle execs tried to explain on a conference call.

• The currency effect: As President and CFO Safra Catz explained, what had been a 1 percent tailwind for currency effects turned into a 2 percent headwind. With all the violent swings in the value of currencies around the world as compared to the U.S. dollar, Oracle suffered a negative effect that pinched revenue.

• Deals didn’t close during the quarter: Catz said that in the final days and weeks of the quarter, some customers added an extra layer of executive approval to close deals to buy Oracle stuff. That meant that some deals Oracle had expected to close before the quarter’s end moved into the next quarter. Catz said that Oracle has taken steps to better manage deal flow to take this into account. It is consistent, however, with recent statements from other enterprise IT vendors, like IBM and NetApp.
• Transitions: Oracle’s SPARC server business just switched to a new chip called the T4, which was unveiled late in the quarter. The machines require a total upgrade, and that means a lot of testing with existing applications, which can slow down deals for the new machines, while at the same time sapping demand for the prior generation of products. That had a lot to do with hardware sales dropping by 14 percent year over year to $953 million. As Catz put it: “We saw good early demand for the new SPARC SuperCluster, but only released the product for general availability at the very end of the quarter, allowing us to ship only a couple.”

Catz also predicted that hardware sales will decline as much as 14 percent this quarter, although CEO Larry Ellison was bullish on its growth prospects later this year. New software license revenue, a key metric gauging software sales, is expected to grow in a range of 2 percent to 12 percent. Total sales are expected to grow in the range of 3 percent to 7 percent, and per-share earnings are expected to come in between 56 and 59 cents, which is in line with the consensus of analysts.

There were a few things that went right. Ellison did what he usually does on a conference call, and crowed about examples where Oracle is beating a competitor. This time, the targets were IBM, Cisco Systems and SAP, but not his usual punching bag, Hewlett-Packard. Oracle won several competitive deals from Big Blue and Cisco, as well, with customers as varied as Australia’s University of Melbourne, the U.S. Food and Drug Administration and the Hyundai Kia Motor Company.

Ellison also hinted that Apple is a big Oracle customer. He mentioned a “a very large American smartphone manufacturer” that had bought more than 30 Oracle Exadata systems as it built out its cloud. Unless I’m missing something, there’s really only one company that fits that description, and that’s Apple. Its use of Oracle gear within the mix at its North Carolina data centers has been speculated about before, but never confirmed by Apple directly. (Big surprise, that.)

The document is a routine filing concerning the timing of the trial and the discovery process. In it, Oracle says that what documents it has received from HP confirms what Oracle has been arguing since this whole thing started: That HP and Intel plan to let the Itanium processor die once it has released two more generations, something HP and Intel have both denied. “HP and Intel have a contractual commitment that Itanium will continue through the next two generations of microprocessors …”

Worse, Oracle alleges that the only reason the chip is still available at all is that “HP is paying Intel to keep it going.” It goes on: “HP has secretly contracted with Intel to keep churning out Itaniums so that HP can maintain the appearance that a dead microprocessor is still alive. The whole thing is a remake of Weekend at Bernie’s.”

Why all the trouble over so obscure a chip? Oracle says it’s all about the support fees that Intel charges. HP makes a lot of money, Oracle says, charging for service and support of its HP UX operating system, which runs on the Itanium chip; it loses money when customers move to systems running more conventional x86-based chips. As Oracle puts it in the filing: “HP achieves a far lower “attach rate” (meaning it gets few service contracts) on the operating systems like Linux that are prevalent on servers running x86 microprocessors. Thus when customers migrate to new platforms, HP loses the service contract. This is a multi-billion dollar problem for HP.” It also helps HP remain competitive with IBM and Oracle’s Sun Microsystems business, Oracle argues in a redacted passage.

“These factors led HP to craft a top-secret plan to create a false perception that Itanium still had a future,” Oracle says in the filing. “HP understands that the future prospects of IT products drive customer purchasing decisions. A buyer who knew that Intel saw no future for Itanium, and was only continuing to invest in the line pursuant to a contractual obligation, would devalue the future prospects of Itanium servers and be less inclined to buy.”

“Oracle Sun has been a victim of this, and according to HP’s documents an intended victim. So why is Oracle the defendant in this case? We now understand it is because Oracle’s decision to stop making new versions of its software for the Itanium system was devastating to HP because it undermined the rationale for paying Intel [redacted] to sustain the illusion of a long-term future for Itanium. Oracle had told too much of the truth.”

HP, whose PR team is working equally late, just sent this emailed statement:

Oracle’s latest filing is nothing more than a desperate delay tactic designed to extend the paralyzing uncertainty in the marketplace created when Oracle announced in March 2011 — in a clear breach of contract — that it would no longer support HP’s Itanium platform. The fact remains that Oracle’s decision to cut off support for Itanium was an illicit business strategy it conjured to try to force Itanium customers into buying Sun servers, and destroy choice in the marketplace. This filing is just the latest in its ongoing campaign to shore up its failing Sun server business and starve thousands of existing Itanium customers who rely on their Itanium processors for mission-critical activities.

As Oracle well knows, HP and Intel have a contractual commitment to continue to sell mission-critical Itanium processers to our customers through the next two generations of microprocessors, thus ensuring the availability of Itanium through at least the end of the decade. HP is resolved to enforcing Oracle’s commitments to HP and our shared customers and will continue to take actions to protect its customers’ best interests. It is time for Oracle to quit pursuing baseless accusations and honor its commitments to HP and to our shared customers in a timely manner.

Intel spokesman Chuck Mulloy had no comment, saying Intel is not a party to the lawsuit, and doesn’t comment on confidential agreements it may or may not have with other companies. Intel CEO Paul Otellini has said in the past the Intel has a long-term roadmap for Itanium that goes beyond the next two generations already disclosed.

Since this whole episode first erupted in March, and escalated into a lawsuit in May, I’ve called it a very public fight about a very obscure chip. Oracle, perhaps looking for something new to fight with HP about, said it would cease developing software created for systems using Intel’s Itanium chip, arguing that it looked like it was going to be retired in the near-ish future. HP, which is the only server vendor worth mentioning that sells Itanium-based systems, was horrified, as was Intel, if for no other reason than they spent a decade or two developing it in hopes it would be the superchip of the future.

Then the future arrived, and it didn’t quite turn out that way. Intel rival Advanced Micro Devices found a way to do 64-bit computing that the marketplace liked better, Intel ultimately embraced the same method for mainstream server chips, and Itanium went on to be a specialized niche product. However, those who use it are a vocal bunch. Some of them petitioned Oracle to change its mind. It hasn’t budged.

So now you know the background. The original filing is embedded below, via Scribd. The best parts are in the first several pages. Happy reading.

Oracle Itanium Filing: “Weekend At Bernie’ss

It’s the third board seat that Schwartz has taken since leaving Sun. He also sits on the board of Taleo, a cloud-based talent management software company, and has a seat on the board of SilverSpring Networks, a smart-grid outfit.

He’s also the CEO of Picture of Health, a start-up focused on applying technology to problems in the health care field.

So what is Moxie? It plays in the same space that Jive Software, Yammer and Salesforce.com’s Chatter do. Its software not only connects employees internally, but with customers and partners as well. It’s the kind of “big theme” that Schwartz likes. “If you’re a company, you have to interact with the customer,” he said to me last night. “Now, do you want to dump a product spec on them, or do you want to captivate their interest over a long period of time? To me, it feels like an I.Q. test.”

Moxie’s software is used in 270 million individual social enterprise interactions per month, and its customers include the consumer electronics companies Epson and Sharp, as well as the Web retailers Newegg.com and Tupperware.

Schwartz, who is also on the board at SilverSpring, was approached for the Moxie board seat by Warren Weiss, a director and lead investor in Moxie and a general partner at Foundation Capital. Weiss and Schwartz are both alums of Next, the Steve Jobs-owned computer company that Apple acquired in 1996, beginning its legendary turnaround.

At issue is the idea of a tax repatriation holiday. Cash-rich companies, many of them tech companies, have billions stashed in overseas accounts waiting for a tax-advantageous moment to bring them back to the States. Companies like Intel and Cisco Systems and, yes, Oracle have been arguing that the government should do what it did in 2004 and give them a tax holiday that would allow them to bring these funds home, the theory being that it would amount to a privately funded stimulus.

The problem is there’s a big debate over what effect, precisely, the 2004 tax holiday had. As reported by The Wall Street Journal today, Levin, who doesn’t favor it, argued in a report released today (embedded below) that the effect wasn’t as good on the jobs front as many companies would like you to believe.

The interpretation is over how and under what circumstances Oracle’s payroll grew. Oracle has spent tens of billions of dollars acquiring companies like PeopleSoft and Sun Microsystems. Naturally, acquisitions add to a company’s payroll, but there are often job eliminations, too, as duplicated positions get eliminated.

Levin pointed out that in the case of two 2005 acquisitions — Retek and PeopleSoft — Oracle added fewer jobs to its overall headcount than there were employees of both companies, and so eliminated more jobs in the wake of the 2004 tax holiday than it created.

“Prior to being acquired by Oracle in 2005, Retek reported in its SEC filings that it had 531 worldwide jobs, while PeopleSoft reported that it had 8,748 employees in the United States. Oracle informed the Subcommittee that, in 2005, it increased its U.S. workforce by 4,440 jobs over the prior year. That 4,440 total, which reflects less than half the number of jobs brought to Oracle by Retek and PeopleSoft, indicates that, after acquiring the two companies, Oracle actually eliminated thousands of jobs previously held by U.S. workers.”

Oracle has since shot back in a statement from Senior Vice President Ken Glueck, citing the growth of its overall workforce since 2004 and in its research and development budget, which as of Oracle’s fiscal 2011 had more than tripled to $4.5 billion from $1.3 billion in 2004. And as of the quarter ended Aug. 31, it had more than $31 billion in combined cash and short-term investments, much of it held in non-U.S. accounts, that it would like to bring back to U.S. shores without having to pay an 8.75 percent repatriation tax.

“Between 2004 and today Oracle has grown its workforce from 42,000 to over 105,000 employees and we are hiring aggressively right now. Oracle spends well over $4 billion per year investing in research and development to fuel further growth. The only news in Senator Levin’s results-oriented ‘study’ is that he still opposes repatriation. With unemployment over 9 percent and more than $1 trillion dollars waiting to be put to work in the United States one would have thought he would revisit his long-standing opposition.”

levinstudy

Though he has been out of the headlines for a while, former Sun Microsystems CEO Scott McNealy has been keeping busy, sitting on the boards of a couple of companies and advising others. Still, that left him with a bit of extra time — time he has been using to help get a new company off the ground.

McNealy’s new venture is called Wayin. It’s a mobile app designed to let users quickly post poll questions from their phone about whatever is going on, whether it is the latest episode of “Dancing With the Stars,” a major news event or the big game.

The idea is that someone is watching something on TV and then turns to his or her phone to post a quick question to others engaged with the same event. In a demo on Wednesday, McNealy quickly responded to several polls in under a minute. People can post queries of their own just by taking a picture — or by choosing one from their photo library and using a preset question or coming up with one of their own.

The app, which has quietly been live in Apple’s App Store for a bit now, officially launched this week. Wayin is free and works on iPhone, Android and the mobile Web. The company hopes to build critical mass through partnerships with sports and media companies, and has announced initial deals with the New England Patriots and Washington Redskins football teams, and with the NHL’s Los Angeles Kings.

Wayin plans to make money by inserting sponsored polls into a user’s stream. For advertisers, it’s a way to get instant feedback on their products and ideas. Polls could even be tied in to the commercials running during the sporting event or other live program being commented on.

“It’s explicit market research,” McNealy said. “There is no inference required.”

Wayin has about 35 employees and is based in Boulder, Colo., once a site of major operations for Sun Microsystems. The company hasn’t taken venture money, but has raised about $6.3 million from early investors.

]]> http://allthingsd.com/20111007/scott-mcnealy-has-time-on-his-hands-and-an-app-for-when-you-do-too/feed/ 0 http://allthingsd.com/20111003/oracle-launches-exalytics-machine-probably-ending-spat-with-autonomy/ http://allthingsd.com/20111003/oracle-launches-exalytics-machine-probably-ending-spat-with-autonomy/#comments Mon, 03 Oct 2011 13:06:05 +0000 Arik Hesseldahl http://allthingsd.com/?p=127559 In a way, you could sort of see how the mishegas that has gone on between Oracle and Autonomy over the last few days was leading up to some larger purpose. For Oracle, that is. It’s not every day that Oracle CEO Larry Ellison deliberately provokes a very public fight with another company that results in back-and-forth press releases, leaked emails, publication of previously confidential PowerPoint slides and so on.

But apparently it all did lead up to something. For those just tuning in, here’s how it went down.

About two weeks ago, on Oracle’s quarterly earnings conference call, Ellison was asked by an analyst about Oracle’s position in the market for analyzing and pulling useful intelligence from unstructured data — transcripts of videos and contents of emails, and scores of other things that aren’t neatly arranged in databases. It’s kind of a big deal, as companies grapple with the so-called “big data” problem, and the question was a natural jumping-off point to discussing Hewlett-Packard’s $11.7 billion acquisition of Autonomy. Ellison, by way of an answer, portrayed unstructured data as a feature of the existing Oracle database software, called it “nothing new,” and then slammed HP for paying too much for Autonomy, the British software firm whose specialty happens to be — you guessed it — unstructured data. And, oh, by the way, Ellison said he took a pass on Autonomy when it had been shopped to Oracle because he thought the price was too high.

Much drama then ensued. Autonomy CEO Mike Lynch said his company had never been shopped to Oracle. Not so, said Oracle — and oh, by the way, you left your PowerPoint slides behind. “Those slides?” Lynch countered. “Never seen ’em before in my life. Maybe you need some help with your unstructured data, because you seem confused at the sequence of events.”

You see, the spat occurred just a few days before Oracle OpenWorld, and got Oracle in stories containing the phrase “unstructured data” numerous times.

And what did Ellison talk about in his keynote address Sunday night? Lots of things. One of them was an appliance called the Exalytics Intelligence Machine that does — guess what? — unstructured data. It’s designed, Ellison said, to do all its analysis while the data is loaded into the machine’s main memory, while four 10-core Intel Xeon chips make it scream on the processor side. “Databases run faster, everything runs faster if you keep it in DRAM, if you keep it in main memory,” he said, describing it as data analysis at the “speed of thought.” Structured data, relational data, unstructured data — it does it all, Ellison said. Now all that mishegas makes sense. It’s all about having the last word.

Ellison’s keynote — an hour and change long — is below. If you want to skip forward to the Exalytics stuff, it starts at about the 57-minute mark.

]]> http://allthingsd.com/20111003/oracle-launches-exalytics-machine-probably-ending-spat-with-autonomy/feed/ 0 http://allthingsd.com/20110930/oracle-buying-hewlett-packard-fuhgeddaboudit/ http://allthingsd.com/20110930/oracle-buying-hewlett-packard-fuhgeddaboudit/#comments Fri, 30 Sep 2011 18:40:19 +0000 Arik Hesseldahl http://allthingsd.com/?p=126906 Amid all the recent drama that has unfolded at Hewlett-Packard — and the he-said she-said back and forth concerning Oracle and whether or not it was approached to buy Autonomy before HP ponied up — lies a lingering meme that refuses to die: That somehow the software giant Oracle is going to make a bid for HP.

Given the recent feuds between the management teams at the two companies, Oracle’s acquisitive history and HP’s sudden weakness, it doesn’t take much for a popular narrative of Oracle buying HP to emerge. It would be a dramatic denouement to the events of the last year that have found HP and Oracle at increasingly caustic loggerheads. Oracle CEO Larry Ellison would take some kind of victory lap and mount HP on the wall like a of trophy.

The idea gained some currency with an Aug. 21 story in the New York Post (which, like this Web site, is owned by News Corp.) arguing that HP’s $11.7 billion bid for the British software firm Autonomy, having caused shareholders to knock $12 billion and change off HP’s market cap, would therefore make HP more attractive to Oracle.

The meme gained further currency with a Bloomberg News story saying that HP’s board was “concerned” that its weakened condition had left it vulnerable to Oracle.

Let me put it like this: No. Just, no.

The first problem with the notion is this: What parts of HP would Oracle want to own? Answer: Practically none.

First, let’s look at the condition of Oracle: Its mainline software businesses are showing healthy returns, while its hardware business, built on the foundation of Sun Microsystems, the IT hardware concern it acquired last year for $7 billion, is ramping up to full speed. But here’s a fundamental truth: Software carries a higher profit margin than hardware, so when software companies buy hardware companies, they can’t avoid seeing their overall profitability erode.

Consider Oracle’s operating margin during its fiscal fourth quarter — its seasonally strongest quarter — during the last three years. In 2009, before the Sun deal was closed, it was 43.4 percent. In 2010, after the Sun deal was closed, it was 38.3 percent. In 2011 it was 41.6 percent. And during Oracle’s most recent conference call, CFO Safra Catz said Oracle hopes to get back to “pre-Sun” operating margins soon.

Now let’s look at HP and its operating margins: In its most recent quarter ended July, HP’s enterprise, storage and networking business turned in operating margins of 13 percent, which were down from 14 percent in the prior year’s period. The story was the same in practically every other HP business unit: Operating margins in services fell from 15.7 percent to 13 percent; in software they fell from 28 percent to 19.7 percent; imaging and printing margins fell to 14.6 percent from 16.9 percent. The only place they increased was the personal systems group — the PC unit that’s being considered for a spinoff — where they grew year on year from 4.7 percent to 5.9 percent.

Conclusion: Owning HP would do nothing good for Oracle’s profitability, especially at a moment when the stated goal is to nudge them up.

There’s more. As Mark L. Moerdler, an analyst at Bernstein Research, argued in a research note to clients on Sept. 26, software accounts for about 2 percent of revenue at HP. And what software it has is not the type that Oracle typically likes. When Oracle does acquisitions, it grabs companies that make applications that plug holes in its own product portfolio. The majority of HP’s software offerings — Autonomy nothwithstanding — deal with infrastructure management, not exactly a priority for Oracle. It is, however, a business where IBM and Computer Associates participate.

And there are two historically important business units at HP that would be outliers at Oracle: PCs and printers. Oracle has no interest in either one, and it’s hard to see that changing. Combined they make up more than half of HP’s annual revenue. In the hands of Oracle, they would probably end up being spun out, either together or separately, but why buy a whole company only to chop off more than half of it — a half that’s shrinking at that — at what would have to be unfavorable terms.

Let’s not forget the valuation estimate of HP’s $40 billion PC business: Analysts have expected that a hypothetical buyer might pay as little as $8 billion for it, or about one-fifth trailing revenue. Why go to all that trouble?

Further: Why would Oracle buy a company that’s roughly one-quarter exposed to the consumer market. Sure, HP has a retail distribution network that’s the envy of the PC industry. But Oracle would rather sell those retailers systems to help them manage their businesses, not the PCs they in turn resell at razor-thin margins.

If that’s not enough, then there’s one key bit about HP that Oracle would actively dislike. HP, by virtue of being the biggest distributor of Windows-based PCs and servers, is the world’s largest reseller of Microsoft Windows. If there’s anything more utterly antithetical to Oracle’s core values than helping put money in Microsoft’s pocket, I haven’t heard of it.

Finally, there’s the issue of cash. Even in its weakened state, HP is trading at a market cap of $45 billion and change. Assuming a premium for the whole thing, that pushes a hypothetical price tag to $60 billion. That’s too rich, even for Oracle, whose balance sheet as of Aug. 31 contained a combined $31.6 billion in cash and marketable securities. It would have to take on a tremendous amount of debt — amounting to 82 percent of fiscal 2011 sales — to get such a deal started, let alone closed.

HP’s directors and shareholders can rest easy. They have many worries about the Silicon Valley icon and the troubles in which it finds itself. But being acquired by Oracle isn’t one of them.

]]> http://allthingsd.com/20110930/oracle-buying-hewlett-packard-fuhgeddaboudit/feed/ 0 http://allthingsd.com/20110926/oracle-president-mark-hurd-on-gaining-momentum-and-adding-value/ http://allthingsd.com/20110926/oracle-president-mark-hurd-on-gaining-momentum-and-adding-value/#comments Mon, 26 Sep 2011 18:28:37 +0000 Arik Hesseldahl http://allthingsd.com/?p=124756 Europe’s economy may be melting down, but you wouldn’t know it judging from the results of software giant Oracle.

In his first on-the-record interview since joining Oracle last year, co-President Mark Hurd tells AllThingsD that Oracle is experiencing a lot of company-specific momentum in Europe, where it saw 14 percent revenue growth in quarterly results reported last week.

“When I look at each segment of our business in Europe, if I read to you the growth rates of each of our product segments, it would sound very consistent,” Hurd said. “We didn’t have any one big deal or transaction that stood out. Europe was a bright spot in the quarter for us.”

Hurd also talked about the state of Oracle’s hardware business, much of which it picked up in its acquisition of Sun Microsystems last year. Hurd reiterated previous comments that Oracle aims to focus more of its efforts on selling hardware that contains more Oracle intellectual property, and thus commands a higher price and profit margin, than on commodity hardware. Oracle CEO Larry Ellison raised eyebrows when he said that Oracle wouldn’t mind if its business selling hardware running Intel-based chips — its so-called x86 business — fell to zero.

“We’re focused on adding value to customers. If there’s no Oracle intellectual property in it then you ought to buy it from someone else,” Hurd said. “All of our products are designed to be the best-of-breed in the markets that they serve. If it’s some product that comes from a third party that comes through Oracle where we add no value, that’s the stuff we have no interest in.”

The comments came in an interview with AllThingsD today, Hurd’s first since he joined Oracle last year, which followed his resignation from HP a month before. A fuller version of the interview will be posted soon.

]]> http://allthingsd.com/20110926/oracle-president-mark-hurd-on-gaining-momentum-and-adding-value/feed/ 0 http://allthingsd.com/20110920/oracles-profit-rises-36-percent-on-strong-sales/ http://allthingsd.com/20110920/oracles-profit-rises-36-percent-on-strong-sales/#comments Tue, 20 Sep 2011 20:38:59 +0000 John Kell http://allthingsd.com/?p=122632 Oracle Corp.’s fiscal first-quarter profit jumped 36 percent as the business-software giant’s traditional software and services offerings saw strong demand, although hardware systems sales declined.

Oracle has reported strong bottom-line growth for several quarters, as the top line benefited from the $7.4 billion acquisition of Sun Microsystems in early 2010 and increased revenue from new licenses and services. But declining sales of Oracle’s hardware products in the fourth quarter raised questions about its decision to expand beyond its traditional software business.

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]]> http://allthingsd.com/20110920/oracles-profit-rises-36-percent-on-strong-sales/feed/ 0 http://allthingsd.com/20110830/java-icon-gosling-joins-sea-robot-start-up/ http://allthingsd.com/20110830/java-icon-gosling-joins-sea-robot-start-up/#comments Tue, 30 Aug 2011 23:53:54 +0000 Ben Worthen http://allthingsd.com/?p=115455 The father of the widely-used Java programming language is leaving Google for a startup that makes sea-faring robots.

James Gosling, the former Sun Microsystems engineer who went to Google after Sun was acquired by Oracle, has joined Liquid Robotics as chief software architect, he said Tuesday. The Sunnyvale, Calif., company–profiled in the Wall Street Journal earlier this year–makes “wave gliders” that ride ocean currents and collect and transmit data such as water temperature, wave heights, whale songs and chemical levels.

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