After the jury returned a partial verdict in the copyright phase of the Google-Oracle trial – unable to decide whether Google’s recreation of the Java platform constituted “fair use” of Oracle’s copyright – the trial has now entered the patent phase, where the same jury will seek to decide whether Google infringed on Oracle’s patents.
No doubt, the arguments will be just as heated – and just as complicated. But with his opening salvo, Oracle counsel Mike Jacobs told the jury there’s a least one thing it no longer has to worry about. “I think you’ll be pleased to know that ‘fair use’ isn’t a part of the patent phase,” he said.
This is true. And it’s a good thing. In failing to agree on the fair use issue during the copyright phase, the jury left the case in limbo, as the world waits for a definitive decision from Judge William Alsup on whether the Java APIs, or application programming interfaces, can be copyrighted. In the patent phase, the jury should be able to make a cleaner decision on whether Google infringed on Oracle’s intellectual property in building a new version of the Java platform for its Android operating system.
Oracle sued Google in 2010, after acquiring Sun Microsystems, the maker of Java. With Android, Google built a new version of the Java platform known as the Dalvik virtual machine, and Oracle claims that with Dalvik and other parts of the mobile OS, Google violated both its patents and its copyrights.
When the case came to trial last month, Alsup decided it should be split into two separate phases – one that addresses Oracle’s copyright claims, and one that addresses the patent claims – and that each would have separate verdicts. On Monday, the jury decided that Google did infringe on Oracle’s copyrights in mimicking 37 Java APIs – interfaces that let programmers build applications for the Java platform – but it couldn’t decide whether this infringement constituted fair use under the law. Google promptly moved for a mistrial, and Alsup is expected to rule on this later in the week.
In the meantime, the trial has proceeded to the patent phase. After the jury watched a short educational video about patents provided by the court, both Google and Oracle gave their opening arguments.
When Oracle initially filed suit in August of 2010, it claimed that Google infringed on seven of its patents, and over the course of several months, Alsup and the U.S. Patent and Trademark Office (PTO) whittled this number to two. After the trial started on April 16, the PTO overturned an earlier ruling that dismissed one of the patents, but Alsup did not allow it back into the case.
The two remaining patents – U.S. Patents 6,061,520 and RE38,104, aka ‘520 and ‘104 – are related to the underpinnings of the Java virtual machine, a piece of software that runs applications written in the Java programming language. Oracle will have to prove not only that Google infringes on the two patents with the Dalvik virtual machine, but that Google was “willfully blind” in doing so, meaning that the search giant was aware it was infringing. In addition, Oracle plans to prove that Google engaged in “induced infringement” because it then distributed Android to third parties, such as handset manufacturers Samsung and Motorola.
As the two sides battle over patent ‘104 – which describes a “method and apparatus for resolving data references in generated code” – the arguments will revolve around the term “symbolic reference” and how this applies to software compilation, the process of turning programming code into executable software. A “symbolic reference” tags data with a name rather than its numeric memory location, and the two are then dynamically resolved. Google will argue that it does not use symbolic references, Jacobs said, but Oracle will argue otherwise. “The evidence is the source code,” he said.
The ‘520 patent describes a “method and system for performing static initialization.” Basically, this is a way of consolidating classes of files, allowing virtual machines to execute less code than they otherwise would. Here the key term is “simulated execution.” Oracle claims Google uses simulated execution with Dalvik, while Google says it doesn’t simulate – it merely parses files.
Google lawyer Robert Van Nest said this patent would get “less time and attention during the trial.”
After the opening arguments, Oracle called Googler Tim Lindholm back to the stand. As was discussed during the copyright phase, Lindholm sent a 2010 e-mail to the head of the Android project, Andy Rubin, saying he believed Google needed a licence to use Java. But before Lindholm testified, Alsup told Oracle that the e-mail could not be mentioned, as it was not relevant to the patent phase – though he said that Oracle could reference other e-mails Lindholm received and sent.
Oracle’s Jacobs called Lindholm a Java virtual machine expert, pointing to the Java Virtual Machine Specifications that Lindholm co-authored and his 17 patents received as a Sun employee as evidence that he was well-versed in the technology underpinning Java. Lindholm testified that Andy Rubin had “absolutely not” asked him to investigate whether Android infringed on Oracle patents.
Oracle also called Robert Vandette and Noel Poore – two other Java virtual machine gurus that work for Oracle but were not paid as witnesses – to testify about performance tests they ran on the Android operating system. Vandette said that when you remove the patented Oracle technology in the Froyo version of the operating system, benchmark performance drops to 9.4 per cent of the performance of the OS that does use the technology.
Google countered Vandette’s testimony by saying he wasn’t looking at application performance specifically, and it countered Poore’s testimony by saying that he’d done his tests with an application that generated nothing more than a “Hello World” world message – a common but basic programming exercise.
Alsup believes this phase of the trial will be far shorter than the copyright phase, likely between four and five days. The jury would deliberate a verdict on the patent issue. According to the initial damages report in the case, the projected patent damages are a mere fraction of the projected copyright damages.
Image by AP
