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Deadlocked jury has Google moving swiftly to declare a mistrial

Oracle Corp.'s (ORCL) made a bold gambit when it refused a licensing settlement with Google Inc. (GOOG) in lieu of a trial by jury.  That gamble may yet prove an unwise decision.  The world's largest smartphone operating system maker (Google) appears to be on the verge of a victory, after a jury was unconvinced that it committed actionable infringement of Oracle's Java intellectual property.

I. Google Scores a Win -- Mostly

The jury was in agreement that Google's Android infringed on Oracle's patented Java virtual machine, a technology that it acquired from Sun Microsystems in a major $7B USD 2010 acquisition.  But the jury today said that an "impasse has been reached" regarding whether Google's infringement was negated by fair use.

The jury had to deliver a unanimous verdict to presiding Judge William Alsup of the U.S. Federal District Court for the Northern District of California (San Francisco).  The responses are seen below:

Oracle v. Google
Oracle v. Google
Oracle v. Google
Oracle v. Google
[Images Source: The Verge]

The jury' answers aren't altogether perfect for Google.  They do find that Google infringed on the general structure of Java and accuse it of lifting a specific algorithm (the rangeCheck method in two * classes/files).  But they also absolved it of two other specific infringement accusations and absolve it from the documentation infringement claims.  

This is a larger victory when you consider that Google already admitted to infringing the * classes.  In other words, any files that Google argued it did not infringe on, the jury generally agreed.

Android doll
A Californian jury largely bought Google's arguments, rejecting many of Oracle's infringement allegations against Android. [Image Source: ZuperDZigh]

The jurors also ruled that Google has cause to believe based on its interaction with Sun that it would not need a license.  But, interestingly, the jurors admonish Google saying that was not sufficient to circumvent obtaining a license.

Oracle tried to make light of the bad news, trying to claim that the * infringements entitled it to the big damages it originally sought.  Judge Alsup quickly dispelled this notion, tell Oracle's lawyers that while damages were likely, they had only prevailed on 1/3 specific source infringement claims and would thus likely see their requested damages shrink substantially.

The deadlocked jury concludes the copyright phase of the trial, which will then go before the expert justice, Judge Alsup, for the patent phase.  The copyright phase saw many of the two companies' top executives, such as Oracle CEO Larry Ellison and Google CEO Larry Page.

Potentially a big reason for the jury's favorable ruling towards Google came from blockbuster witness Jonathan Schwartz, former CEO of Sun and big fan of the Android operating system.  Mr. Schwartz gave Android the thumbs up back in the Sun era, in a high-profile blog which Oracle tried unsuccessfully to purge from the internet.

While the jury clearly felt that Mr. Schwartz did not have sufficient authority to authorize the use without a formal written agreement, it also upheld a key Google claim, that it reasonably contacted Sun seeking to ensure that unlicensed use was kosher.  That jury confirmation may prove a key setback for Oracle in the damages phase as it paints Google as a sympathetic party who maybe goofed on failing to get a formal license, but who made a sincere effort to avoid misbehavior.

Judge Alsup will almost certainly use the jury's findings in his final ruling.

II. SSO Will Prove the Final Battle

(Note: The article previously misused the phrase "patent" when referring to Oracle's SSO IP claims, this is actually a copyright as readers pointed out.  Thanks!)

The copyright phase isn't over -- not quite yet.  Oracle still has one trick up its sleeve -- the SSO copyright.

Even as Google moves to declare the jury portion a mistrial (likely preventing both damages and retrial), Oracle is desperately preparing its May 10 filing to try to prove that the structure, sequence, and organization (SSO) of the Java application programming interface (API) is worthy of a creative copyright.

An SSO patent is kind of like taking non-copyrightables -- e.g. boards, shingles, concrete, and siding -- and attempting to copyright the compiled product on an architectural basis (say a copyright on a home design).  The software engineering copyright methodology, which is used by super-corporations, remains a controversial tactic, as many argue that structure of code should not be copyrightable given the slippery slope precedent that creates.

Sun cup
The final battle will center around whether the structure of Java is patentable.
[Image Source: igorschwarzmann/Flickr]

Google will also present its case why the SSO copyright methodology is invalid on May 10.  Both companies can counter each others' arguments on May 14.

The SSO debate is likely Oracle's last hurrah.  Win and it still has a hope to secure the kind of infringement ruling that could allow it to ban Android handsets and force Google into a painful license agreement.  Lose and Oracle may essentially lose it all, particularly given that the jury found Google's infringement to be minimal, absolving Google of many or Oracle's toughest accusations.

Google was hopeful of today's events, commenting:

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.

Oracle released a statement hoping to bolster its case, as well:

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.

The pair will conclude their testy tango in court later this summer, giving closure to one the tech industry's most bitter legal spats.

Source: The Verge

Comments     Threshold

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SSO is not a patent
By dlapine on 5/8/2012 12:58:11 AM , Rating: 5
Please correct your article Jason. The SSO (Structure, Sequence and Organization) issue is not connected to the patent phase of the trial.

Oracle claims that you can copyright the Java API, due to it's creative nature, specifically the creative way it is organized. The SSO of the Java API is the major copyright claim in this case so far. The claim is a load of BS, but it only applies for a claim of copyright infringement, not a violation of a patent grant.

Daily Tech readers should understand that "Application Programing Interface" (API) is the list of things that an application can do when a programmer writes new code to use that application. Things like "Print.file", "Save.File" and "". Trying to copyright how those items are named and arranged is just silly. These are functional items- there's nothing creative in the layout.

It's like Ford claiming that they have a copyright on the arrangement of the steering wheel, brake and gas pedal in any car. Imagine the consequences if all auto makers had to use a different layout. Imagine Ford suing GM because they built one of their cars using that layout. That's what Oracle is essentially claiming here.

Google build Android to use the same API as Java, but they built their own version of Java, called Dalvik that is for smartphones. It's Google's work, their own "engine and dashboard" so to speak, but arranged in the same way that Java is. Google did it that way so all those java programmers already out there could write code for the Android phone without having to learn everything again.

The most important thing to note about the verdict so far is that the judge told the jury to consider the SSO of the Java API to be copyrightable when considering if Google "copied" it, without telling them that he would decide later in the trail if someone could even copyright an API as a matter of law. This means that the whole point is moot if he later simply says, "Nope, you can't copyright an API, it's not creative enough."

As for the whole 9 lines code Google admitted copying verbatim from the entire 15,000,000 lines of Java? Well even Oracle's court testimony claimed that the value of that code was $0.

The patent phase started today, and it covers 2 software patents, '104 and '685. It Should take a week or two.

RE: SSO is not a patent
By MGSsancho on 5/8/2012 3:02:15 AM , Rating: 2
+1 for constructive criticism.

RE: SSO is not a patent
By WalksTheWalk on 5/8/2012 10:24:13 AM , Rating: 1
The difficult thing about this trial is that APIs are partly functional and partly creative. If they were purely functional they would be the exactly same across languages, excepting the language syntax of course.

In the analogy above, the layout of car controls are a physical tangible thing, subject to patent law and not copyright law. A programming language is inherently a written language like a book so it falls under copyright law, not patent law. They are too different to compare. Now, a car manual can be copyrighted...and they are.

I'm not saying Oracle should win but I am saying that it's as cut and dried as some make it out to be.

RE: SSO is not a patent
By Solandri on 5/8/2012 1:48:49 PM , Rating: 3
Oracle is going to be hoisted by their own petard if they win this. Java borrows heavily from C/C++. If Oracle wins and it gets established in U.S. law that APIs and function call names can be copyrighted, then they (as the owners of Java) owe a whole lot of money to Stroustrup, Kernighan, and Ritchie for violating their copyrights. A lot more than Google owes them.

RE: SSO is not a patent
By JasonMick on 5/8/2012 10:39:56 AM , Rating: 2
Please correct your article Jason. The SSO (Structure, Sequence and Organization) issue is not connected to the patent phase of the trial.

Fixed & clarified, thanks. :)

I appreciate you sharing your expertise on the topic with us and clarifying that misunderstanding.

Looks like I correctly referred to it as a copyright in some places in the original text, but erroneously labeled it a patent in others.

The text is now consistent!

As a followup question, since you've been quite helpful:
If I understand correctly Oracle claims that Google directly lifted copyright blocks of code in certain cases, though. Being familiar with Android's Davlik distribution, are these chunks (e.g. the class) in the latest builds?

RE: SSO is not a patent
By dlapine on 5/8/2012 10:50:05 AM , Rating: 2
No problem, this is a very complicated court case in some ways.

Google noted during the trial that the TimSort routine had been pulled from Dalvik. Fortunately, it's not hard to re-write 9 lines of code for Android and re-distribute the updates.

There's also some contention over the TimSort stuff as well. Seems the author donated it to Java; it's not as if Sun actually wrote that code itself. Doesn't matter much now.

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