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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