Why Didn't Sun Sue Google Over Dalvik?

Google/Oracle Lawsuit

Jessica Thornsby
Google-Oracle-Lawsuit

As more details of the lawsuit emerge, bloggers debate why it has taken this long for the Java patents to be leveraged against Google.

Last week, the news broke that Oracle are suing Google over a
series of patents. Since then, copies of the complaint, filed in federal court in
California, have surfaced, providing fresh insight into the
technology at the centre of the debate.

In the complaint, Oracle state that Google were clearly aware of
Sun’s patent portfolio, as Google have a history of hiring former
Sun Java engineers. Even Google CEO Eric Schmidt is a former Sun
employee, and previously led Sun’s Java development team.

“Google’s Android competes with Oracle America’s Java as an
operating system software platform for cellular telephones and
other mobile devices,” Oracle said in its complaint, before requesting unspecified
damages, and for any Google software that is discovered to violate
Oracle’s copyrights to “be impounded and destroyed.”

The patents in question were named (United States Patents Nos.
6,125,447; 6,192,476; 5,966,702; 7,426,720; RE38,104; 6,910,205;
and 6,061,520.) However, interestingly, in the complaint Oracle
also refer to the Dalvik VM. The Dalvik VM was engineered by Google
to run compiled Java source code on mobile devices. It effectively
allowed Google to leverage Java without paying Sun for use of the
Java runtime on Android devices, by compiling into Dalvik bytecode.
Android uses the syntax of the Java platform and the Java SE class
library, but not Java bytecode or the JVM. Dalvik is explicitly
incompatible with the existing Java virtual machine instructions.
According to Miguel de Icaza, the rumour is that Dalvik arose
because Google and Sun could not reach an agreement over the
licensing of Java Micro Edition, so Google engineered Dalvik as a
replacement for Java Micro Edition.

Dalvik has always been a contentious issue. Back in 2007,
Stefano Mazzocchi referred to Dalvik as “the
new name of Sun’s worst nightmares,” before predicting many
IP-related lawsuits would centre around Dalvik. However, these
never manifested themselves while Sun was in charge of the Java
patents. Andrew Savory has theorised that Sun turned a blind
eye to Android, because they were concerned with maintaining their
reputation, as “companies that opt for patent warfare over
innovation are not viewed kindly.” There is also some risk
associated with filing a complaint against Dalvik because, if
Oracle lose, it might encourage more companies to imitate Google
and launch their own Dalvik alternatives, rather than pay Oracle
royalties.

Miguel de Icaza has a more controversial view
on why Sun did not sue Google: namely that Sun was sold to Oracle,
“with a big “Sue Google” sign” and that “by the time Oracle bought
Sun, they knew that they would be going after Google and anyone
else with a big, fat checkbook that did not have a licensing deal
in place.” In his opinion, Sun’s potential to sue Google over the
Java patents, was the company’s major selling point. The idea that
this lawsuit has been in the pipeline for some time, is supported
by James Gosling, who has blogged about
integration meetings between Sun and Oracle where he was questioned
about the patent situation between Sun and Google.

According to US Today, Google spokesperson Aaron Zamost
issued a statement on the lawsuit. “We are disappointed Oracle has
chosen to attack both Google and the open-source Java community
with this baseless lawsuit. The open-source Java community goes
beyond any one corporation and works every day to make the web a
better place. We will strongly defend open-source standards and
will continue to work with the industry to develop the Android
platform,” reads the statement.

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