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Google Asks PTO to Re-Examine Oracle Patents

But Google is also trying to defang the copyright charges

Google asked the US Patent and Trademark Office Tuesday to re-examine four of the seven broad Java patents that Oracle has accused Google of infringing in Android, its Dalvik virtual machine and Android SDK (Patents No. 5,966,702; 6,061,520; 6,125,447 and RE 38,104). Oracle also charged Google with copyright infringement.

Westerman Hattori Daniels & Adrian partner Scott Daniels, a patent attorney who discovered the ex parte request and blogged about it, observed that "It is quite possible that Google will soon request re-examination of the remaining three Oracle America [Sun] patents. Google might request that the trial judge, Judge William H. Alsup, stay the case pending completion of the re-examination proceedings, but such a stay might not be granted since Google and Oracle America are direct competitors and since re-examination could not resolve the copyright allegations."

But Google is also trying to defang the copyrights charges.

Patent watcher Florian Mueller blogged that Wednesday Google asked Judge Alsup if it could file a motion for summary judgment to get the copyright allegations thrown out of court.

Mueller, who figures Google's not going to make much headway invalidating the Java patents, says Google wants the copyright charges swept away so it's not ultimately standing there in the dock guilty of both patent and copyright infringement.

Copyright infringement would play to willfulness and willfulness can increase the damages.

Mueller figures Google might be able to squelch some the patents' claims depending on what prior art it can put on the table but that's not to say these are the only patents Oracle's got. It might even have patents that read on other parts of Google's business, who knows. Nor does he think that Oracle's copyright case is particularly weak.

Google has argued in the copyright part of the case that because Oracle has only identified 12 files that it alleges were copied, "less than 1% of Android," "their use is de minimis and is not actionable."

Mueller is appalled at such an argument and says it "baffles all description" that Google would "suggest the creator of a large program should get away with a certain amount of unauthorized copying from someone else's work."

In his opinion, "if Google's attempt to undermine the rule of law in connection with copyright succeeded in any way that would be bad news for authors - not only programmers but also writers, composers and other creative people."

More Stories By Maureen O'Gara

Maureen O'Gara the most read technology reporter for the past 20 years, is the Cloud Computing and Virtualization News Desk editor of SYS-CON Media. She is the publisher of famous "Billygrams" and the editor-in-chief of "Client/Server News" for more than a decade. One of the most respected technology reporters in the business, Maureen can be reached by email at maureen(at)sys-con.com or paperboy(at)g2news.com, and by phone at 516 759-7025. Twitter: @MaureenOGara

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