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Java IoT: Article

Google Waves Small White Flag

Google’s trying to get the trial stayed pending a re-examination of all the patents

Google told the court considering whether the Oracle-Google Android suit should be stayed that it's willing to settle.

That's like the next best thing to admitting that it's guilty of infringing the Java patents that now belong to Oracle and could lose the case, something the judge has already sussed out.

Google made the suggestion in a joint filing despite the Patent and Trademark Office's preliminary finding against a couple of the Oracle patents.

Google's trying to get the trial stayed pending a re-examination of all the patents, but is arguing for at least a narrowing of the case "for the sake of efficiency," it said:

"Such a narrowed case will also eliminate the need for those efforts specifically directed at the claims rejected through re-examination, including motion practice, expert reports, and other trial preparation, as well as make it more likely that the parties could reach an informal resolution of the matter." (Emphasis added.)

Florian Mueller, who's following the case wall-to-wall, says that "Google has clearly blinked."

Its statement is "a fundamental departure from the positions it previously articulated in its public filings and its public statements" where "it has so far dismissed Oracle's assertions as if they had no merit whatsoever."

Florian figures maybe discovery ain't going too well for Google and that it's lost confidence in its defense.

Although Google may be prepared to settle and make one or more payments to limit its exposure, Florian thinks the two are "too far apart at this stage because Oracle is too confident of its ability to command a high royalty rate (presumably a high per-unit royalty)."

Recall that Oracle is demanding $2.6 billion in damages but it's unclear if that number is before tripling for willful infringement since Google puts the figure as topping out around $6 billion.

At press time, Florian reported that Oracle had upped its claims to increase the halo effect - a k a "network effect" - of Android on Google's non-mobile business, nosebleed territory.

Since Google has refused when asked nicely, Oracle wants Google compelled to cough up a lot of data on search revenues covering the last seven years.

It argues that the whole premise of Android is to increase Google's search revenues.

Florian muses out loud that it's just the sort of detailed data antitrust regulators might like to see and concludes that Oracle and Google are probably farther apart than they appeared.

After that, a bunch of rather confusing reports by Reuters, Bloomberg and ZDNet came out of a hearing Thursday that seemed to indicate that - among other things - Sun would have liked to have partnered with Google on Android but wanted $100 million in royalties over three years for Java (Bloomberg).

Judge William Alsup seems convinced that Google is violating the Java patents although he seems equally convinced that both their sides are being unreasonable, with Oracle asking too much and Google wanting to pay nothing.

That ain't going to happen, he apparently said, "Google is definitely going to pay up ‘probably in the millions, maybe in the billions.'" (ZDNet)

Reuters heard him warn Google "it could suffer drastic penalties if Oracle is able to prove Google willfully infringed Oracle's patents."

He reportedly "rejected Google's argument that its ad sales should not be included in estimating damages from the Android system." (Reuters) Although Bloomberg heard him reject Oracle's "equation of its damages to the entire market value of Android," ZDNet said he said "advertising revenues are a way to determine Android's value."

Alsup reportedly read a Google e-mail from Google's Android project leader that said they ought to license Java and said to Google, "Don't you think a good lawyer will convince a jury that it's a license for patents?"

Google's position seems to be that Android doesn't use the Java Virtual Machine, just the programming language that's free to all.

ZDNet said, "Oracle really screwed up because it couldn't present exact patents and evidence of infringement upon them, with estimates ranging from seven to 50 to 123. Considering Google kept contradicting itself and Oracle didn't seem as prepared as it should have been, it's not surprising that Judge Alsup didn't offer any resolution on Thursday."

The judge is supposed to issue an opinion soon.

See http://fosspatents.blogspot.com/2011/07/oracle-wants-to-increase-its-26-billion.html.

The trial, by the way, is supposed to start on Halloween, only three months away.

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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