Google Raise Question of Third-Party Liability

Are Oracle Suing the Wrong People?

Jessica Thornsby

Google claim Dalvik VM, was independently developed by the Open Handset Alliance.

Groklaw have published an analysis of Google’s answer to
Oracle’s amended complaint and its memorandum opposing Oracle’s
Motion to Dismiss. Google have been asserting that Oracle’s patents
are invalid because “one or more claims are directed to abstract
ideas or other non-statutory subject matter.” Now, Google are
saying that Oracle’s Exhibit J (Comparison of Java (J2SE 1.5) and Android
versions of that appeared to establish some
copying had gone on, has been edited. Google state that Oracle “has
redacted or deleted from the materials shown in Exhibit J both
expressive material and copyright headers that appear in the actual
materials, which are significant elements and features of the files
in question.”

Google continue to stress that the Dalvik VM is not a Java VM,
as the bytecode is distinct and separate from the Java bytecode.
Furthermore, Android is developed by other companies and
individuals, and Groklaw identify one defence as third-party
liability. The Android platform, including the Dalvik VM, was
independently developed by the Open Handset Alliance. The Open
Handset Alliance consists of an additional 77 technology and mobile
companies, beyond Google. “Any use in the Android Platform of any
protected elements of the works that are the subject of the
Asserted Copyrights was made by third parties without the knowledge
of Google, and Google is not liable for such use,” say Google in
their defence.

And, Google have an accusation of their own: “Oracle and its
predecessor Sun have attempted to impermissibly expand the scope of
the Patents-in-Suit by requiring licensees to license items not
covered by Oracle’s alleged intellectual property in order to
receive a license to Oracle’s alleged intellectual property.”

“Wouldn’t it be ironic if Oracle’s patents ended up on the junk
heap?” comments Groklaw, before theorising that the lawsuit might
lose some of its sparkle for Oracle, if the company have to sue the
Open Handset Alliance, one of its members or even an individual
developer, instead of the search giant. If Oracle are solely after
money, then they might drop the lawsuit if Google prove it wasn’t
them, but some other, less wealthy individual, who infringed on the
patents. Or, perhaps Oracle have backed themselves into a corner:
Google have thrown down the gauntlet and accused Oracle’s patents
of being invalid. How will it look, if Oracle back out now?

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