In a terse press release yesterday released by Oracle, the company announced it is suing Google over patent infringement related to Google’s Android operating system. The release simply cited a statement from spokesperson Karen Tillman as follows:
"In developing Android, Google knowingly, directly and repeatedly infringed Oracle’s Java-related intellectual property. This lawsuit seeks appropriate remedies for their infringement…"
This unexpected move by Oracle sends a strong and threatening message to Google and the entire Android community—specifically that Oracle will use its intellectual property rights to get compensated for innovations around the exploding mobile marketplace. Oracle’s CEO Larry Ellison is inserting himself in the middle of an ever-evolving battle between Google CEO (and former Apple Director) Eric Schmidt, Apple CEO Steve Jobs, a long-time friend of Ellison’s.
Filed in U.S. District Court in Northern California, the law suit comes on the heels of Oracle’s acquisition of Sun Microsystems in January of this year. Oracle is claiming seven counts of patent and certain copyright infringement perpetrated by Google, damages against those acts and injunctions against continued acts of infringement.
The suit alleges that Google’s Android competes with Oracle’s Java as an OS platform for mobile devices. Oracle is claiming that Android’s software stack includes Java applications running on a Java-based framework with core libraries running on Dalvik, the virtual machine (VM) that runs applications on Android devices.
Dalvik – Google’s Java “End Run”
Dalvik is a Google developed virtual machine that allowed the company to skirt Sun’s original licensing terms when Android was released. Specifically, when Sun was an independent company, it released its free Java source code under an open source license (GNU GPLv2). It did this of course to attract open source developers. In the license there is a “Classpath Exception” which is a crucial provision (see last paragraph) that allows developers to link their code to Java without the need to fall under a GPL license—meaning developers can make their own licensing terms and not be bound by GPL. Here’s the rub – Sun only included the Classpath Exception for the core Java platform – it’s not included in the mobile edition. So Sun brilliantly appeared to be playing open source benefactor while at the same time keeping control of the mobile side of the equation (i.e. the rights to the gold mine).
Google, realizing what Sun had done, developed an end run strategy to Sun’s move, which resulted in Dalvik. Davlik is a virtual machine, similar to the VMs in Java or .Net. Google developed it from scratch (most likely with the team of Java engineers it hired in mid last decade). Google made Davlik open source skirting Sun’s GPL license (which doesn’t include the Classpath Exception for mobile). Because of Davlik, Google doesn’t have to ship Java Virtual Machine with Android yet its Android developers can still use the core Java integrated development environment (IDE). Google gets to have its cake (leveraging the Java community) and eat it too (by shipping its own VM with Android thus skirting Sun’s licensing terms).
You Can’t End Run Whales Without Consequences
As everyone knows, companies like Oracle, IBM, HP, Intel and Microsoft don’t simply let other firms end run their IP. Google in my opinion, by skirting Sun’s licensing terms, knew exactly what it was doing. At the time, Google had a great relationship with Sun but it had to know that eventually, as money started pouring in from Android it would have a day of reckoning—likely in the form of some cross-licensing agreement. Now that Oracle owns Sun, Google’s move may turn out to be more expensive than it originally thought. There is no way for me to know if in fact Google has violated any of Oracle’s patents but in squinting through the lawsuit you can see the strategy Oracle’s attorneys took. They’re going after Google’s infringement of IP surrounding Java such as security, access control and other indirect methods related to Java owned by Oracle. Here are the seven areas where Oracle owns patents that it is claiming were violated by Google.:
1) “Protection Domains To Provide Security In A Computer System
2) Controlling Access To A Resource
3) Method And Apparatus For Preprocessing And Packaging Class Files
5) “Method And Apparatus For Resolving Data References In Generate Code
6) Interpreting Functions Utilizing A Hybrid Of Virtual And Native Machine Instructions
7) Method And System for Performing Static Initialization
Add to this copyright infringement and the fact that Microsoft, years ago, did a cross license with Sun on virtual machines to cover its but and the suit adds up; big time.
The Angle on this Law Suit
When Oracle bought Sun, everyone (me included) assumed it was for defensive purposes. In particular, because Oracle’s platforms were so reliant on Java, it didn’t want to let Sun get into the hands of competitors, specifically IBM. The timing of this suit is brilliant. Android, according to Gartner, has just surpassed iPhone for the number 2 spot in mobile market share and Google is the logical deep pocket target to go after. Android has too much momentum to stop now and Oracle is asserting itself as a leader; signaling that it will use its growing patent portfolio to its advantage. While many of Google’s fans and Android proponents (of which I am one) will hammer Oracle and claim it is stifling innovation and growth, the fact remains that Sun had the foresight to write its licenses in a way to potentially protect its interest in mobile markets, where giant telcopolies shouldn’t be given free rein on software innovations from the technology industry.
Oracle is doing what any firm in its position would do, although probably more in a more aggressive posture than McNealy would have taken with Schmidt.