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Oracle's Reply to Google's Answer with Counterclaims |
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Thursday, December 02 2010 @ 04:06 AM EST
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Oracle has now filed its Reply to Google's Answer with Counterclaims to Oracle's Amended Complaint. And now that I've read all three documents, I think I've finally understood what it's about, at least the big picture. It's an intriguing case. Standard wisdom would indicate that Google would settle, pay up, and move on. From that viewpoint, Google's filing would be mostly positioning for settlement purposes. But nothing in patent law is normal right now, so if Google is interested in getting these patents tossed overboard in a way that could have broader implications for software patents, they might decide to go all the way with this. After all, they have alleged that each of Oracle's patents is invalid "because one or more
claims are directed to abstract ideas or other non-statutory subject matter", and frankly the first thing I noticed with the patents was that they didn't seem to be tied to a specific machine, so depending on how the US Supreme Court defines its terms after Bilski, this case could be the one to get that firmed up. Google has a strong record of winning patent infringement cases, so they know what they are doing. It's a question that they'll answer based on their analysis of the patents and whether this is the case to fight to the end. Corporations don't think like individuals, of course, so it could go either way. Since we can't know what they're thinking or planning, we'll assume they plan to fight, so I've done a chart of the counterclaims and Oracle's answer to each of them, which I hope will be helpful in parsing out each side's position with some clarity.
Here is Oracle's filing, first of all:
11/29/2010 - 60 - ANSWER TO COUNTERCLAIM 51 Answer to Amended Complaint, Counterclaim by Oracle America, Inc.. (Peters, Marc) (Filed on 11/29/2010) (Entered: 11/29/2010)
When you read it, you'll notice that Oracle references numbered paragraphs in Google's filing. Remember that Google has more than one set of numbers in that filing, first in its Answer section, 1-47, then the prayer for relief and then the jury demand, and then it starts again with paragraph number 1 in its section on defenses, and then come the counterclaims, with yet another beginning at number 1, and then with the section marked Factual Background it begins with paragraphs 1-100. Those last are the ones I'll be highlighting in the chart. That's how lawyers keep it all straight, so they can reference the section and paragraph they want to argue about. Why do I say that normally you'd expect Google to position strongly and then negotiate a settlement? Because, as I read their answer, they essentially admit they crossed a technical line. I'd compare their argument like this, although I wish I could think of a better analogy: suppose you had signed a contract with a buddy of yours that you'd paint his living room for a certain amount of money, stipulating that you were to use only organic paint. If you use regular paint, he can sue you for damages. You both sign, but then later you and he are discussing things in emails, and he tells you that if you wish to use regular latex paint, it'd be fine. So you do. He comes home a couple of times while you are painting, and again he tells you it's looking great, and the fumes from the regular paint aren't bothering him at all and go ahead and finish. Then when it comes time to get paid, he sues you instead, stating that you didn't use organic paint, and he shows the judge the contract which, sure enough, stipulates to organic paint only and damages. Now what happens? Surely you can at least show the judge the emails and relate the conversations. Should you have amended the contract and signed the amendment? Yes, but there is a course of conduct here, and now you've not only put in the hours to paint the room, you've spent money on that paint. So there's right and wrong on both sides now. If he wanted you to use only organic paint, he should have said so before you finished the room, and he had multiple opportunities to do so. He can't argue he didn't know. And you can argue he said it was fine with him, what you were doing. Will a judge care? Yes, he very well might. That's kind of the situation here, broadly speaking. If you know someone is infringing your copyrights or your patents, and you say or indicate you don't care, you can't years later decide you do care after all. It's complex here, because Oracle is the new owner of Java. But Google points to its position prior to even owning Java, how Oracle voted to allow the various restrictions to be lifted so Google and others could do what Google did. After it bought Sun and with it Java, it did a U-turn. But now Google has spent a lot of effort and money developing its software, so now it's prejudiced by the reversal. That's its argument.
Oracle admits that, yes, Sun had field-of-use restrictions on what the GPL'd code could be used for, and yes Oracle used to agree with Apache that Sun should open that up, and yes we know that means Apache can't pass the TCK and get patent protection, and no, we are not going to change that now that we own Java, and we don't care if you admire us or not, and the bottom line is, it's our stuff now.
Oracle says that there are field of use restrictions and various hoops you have to hop through if you want to be safe in using Java. Google didn't make it through all the hoops. They are infringing, as a result. That's Oracle's position.
Google responds that it had every reason to rely on Oracle not intending to enforce these patents from its course of conduct. Google believes it isn't infringing, that the patents are unenforceable and invalid.
Oracle's license requirements to be able to do a clean room version of Java are an impermissible expansion of the scope of the patents, Google alleges, so Oracle is guilty of misuse
"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." So that's Google's position.
Technically, Oracle can point to the license terms. And if the court is the type to stick to the letter of the law,
Google is in Oracle's sights on that issue. Of course, Google has many other defenses along with its counterclaims, and it obviously will settle if it doesn't think it is likely to prevail, but this is where the X is on the map, I'd say, the point where Google has the weakest link in its chain, in that it has to argue to a court that yes, there are licenses, and yes, Oracle thinks we didn't follow them the way Oracle thinks we should have, and yes we didn't get the license that would allow us to use these patents, but here are the various good reasons why we shouldn't have to. That's more of a gamble than saying, we did too jump through all the hoops to get a license, and we have a license to do what we did. It's a kind of admission. That's how I read it, in that if Google knew it had followed all the requirements to a T, it wouldn't need this misuse defense.
Here are all the hoops you have to jump through as Oracle describes them in its filing, and in doing so, it is laying out what its beef is with Google:
10. Answering Paragraph 6, Oracle admits that Sun published its copyrighted Java
specifications and offered licenses to them under certain conditions. For example, in the case of the Java 2 Platform, Standard Edition, Sun permitted developers to create “clean room”
implementations of Sun’s Java specifications provided that they comply with all applicable license requirements, including requirements that they (i) include a complete implementation of the current version of the specification without subsetting or supersetting; (ii) implement all the interfaces and functionality of the required packages of the Java 2 Platform, Standard Edition, as defined by Sun, without subsetting or supersetting; (iii) do not add any additional packages, classes, or interfaces to the java.* or javax.* packages or their subpackages; (iv) pass all test suites relating to the most
recent published version of the specification of the Java 2 Platform, Standard Edition, that are available from Sun (the Technology Compatibility Kits) six (6) months prior to any beta release of the clean room implementation or upgrade thereto; (v) do not derive from Sun source code or
binary materials; and (vi) do not include any Sun source code or binary materials without an appropriate and separate license from Sun. Google is not in compliance with these license conditions. Developers were well aware that Sun’s specification license requires compatibility testing using Sun’s TCKs, which were and are available free of charge to qualifying universities, colleges, not-for-profit organizations, and individuals (see http://java.sun.com/scholarship/). Oracle lacks sufficient knowledge or information to admit or deny the remainder of the allegations of
Paragraph 6, and, on that basis, denies them. So that's what this is all about, right there in that paragraph. It bothers me that Oracle didn't tell all that earlier, waiting to spell it out in its Reply, meaning Google doesn't get to respond, but there were other motions that maybe interfered. I'll give them the benefit of the doubt.
I don't see Oracle respond in any way to the allegation by Google about Exhibit J, 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." I also don't see any broader explanation of how each patent is allegedly infringed. Google wrote that "No claim of the Patents-in-Suit can be properly construed to cover any of Google's products." And I don't see Oracle at this stage responding to that.
The big GPL-ing of the Java code, then, with all the publicity including getting Richard Stallman to join in the press event I finally understand to be basically a ruse, or a bait and switch. Well, not a bait and * switch*, but a bait and mislead the inattentive. Yes, they GPL'd some code, but you can't actually use it any way you want to. You can't use it everywhere because, like Apache, you can't pass through all the Java hoops, because Oracle won't let you. Why use Java, I'm now asking? If this is how it is, why step into such a cage? I confess, it's a great mystery to me why people use proprietary code at all any more. The litigation that arrives on your doorstep as a package deal with the proprietary code is such a repellant, as this patent case so vividly demonstrates. People sometimes express a dislike for the GPL, because it makes them share, but which is worse, to have to share some code, or pay other people for code you are perfectly capable of coding for yourself if they hadn't patented it, or get sued up to your eyeballs every time you try to code something useful? If you look at it like that, the GPL looks pretty good to me, and I am puzzled that Google doesn't see that now that everyone has them in their litigation sights. Or maybe they do. We'll see.
As for Google's mentioning that if anybody infringed it wasn't Google and what it wrote that "Other than the Harmony libraries, the Android platform – including, without limitation, the Dalvik VM – was independently developed by the OHA," the Open Handset Alliance,
Oracle provides this affirmative defense:
AFFIRMATIVE DEFENSES
Without conceding that any of the following must be pled by way of affirmative defense or that Google does not have the burden of proving the issue as part of its affirmative case, Oracle pleads the following as affirmative defenses:
FIRST AFFIRMATIVE DEFENSE (Assignor Estoppel)
Google asserts invalidity of each of the Patents-in-Suit through affirmative defenses and declaratory judgment counterclaims. Each of the inventors of the Patents-in-Suit assigned the patents to Sun (now Oracle) for good and valuable consideration. The doctrine of assignor estoppel bars Google from challenging the validity of any Patent-in-Suit naming an inventor with whom Google is in privity. Some of the named inventors joined Google and have developed software for
Google. Some may in the future. Google is in privity with these inventors and is barred from asserting invalidity of their patents. For example, on information and belief, Frank Yellin, co-inventor of the ’520 patent, and Lars Bak and Robert Griesemer, co-inventors of the ’205 patent, are presently employed by Google, and Google is in privity with them with respect to those patents. Google is therefore barred from challenging the validity of the ’520 and ’205 patents by the doctrine of assignor estoppel.
In privity, as you may recall from the Novell-Microsoft WordPerfect litigation, essentially means so closely associated that they are essentially one and the same as regards the same property. Microsoft was successful in that litigation, so far, in using that concept to say that Novell and Caldera were in privity when Novell got Caldera to sue Microsoft over DR DOS, with Novell hidden in the background, and so Novell got whatever it could get via Caldera's antitrust litigation settlement and can't ask for anything more now for WordPerfect. That's on appeal, although I'm guessing the latest Novell-Microsoft patent deal may well indicate a settlement has been reached. But what Oracle is saying is based on the same principle, that the developers who got these patents now work for Google, so Google can't claim invalidity because it's in privity with the inventors. Oracle doesn't list all their patents as being in this you-can't-challenge-them category, only two.
So, here's the chart showing Oracle's answers to Google's counterclaims, remembering that both Google's Answer and Oracle's Reply include more than what is in this chart, and I used Google's paragraph numbering, but to get Oracle's just add 4 to each Google number:
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Google's Amended Counterclaims |
Oracle's Reply |
1. | A. The Java Platform and Programming Language
Upon information and belief, the Java programming language and the Java platform — a software platform that includes a runtime environment that enables programs written in the Java programming language to execute — were developed by Sun Microsystems, Inc. ("Sun") in the mid-1990s. While they are distinct elements, the term "Java" is commonly used to refer to the programming language, the runtime environment, as well as the platform.
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A. The Java Platform and Programming Language
Answering Paragraph 1, Oracle admits that the Java platform includes the Java programming language and a runtime environment. Oracle admits that Sun Microsystems, Inc. (“Sun”) developed the Java platform in the 1990s. Oracle denies any remaining allegations of Paragraph 1. |
2. |
The Java programming language was designed to use a syntax that was similar to well-known, existing object-oriented languages at the time, such as C++. Instead of compiling programs into machine-executable code that could only be run on a particular computer system, the Java platform implemented a well-known technique wherein programs written in the Java programming language were compiled into intermediate instructions called "bytecode" that could only be executed on a computer that implements a Java "virtual machine." The virtual machine, typically a program, receives the bytecode and can convert it into instructions appropriate for the particular computer upon which the virtual machine was running, and then execute those instructions on that computer. So long as there is a Java virtual machine available for a given computer system, any program compiled from the Java programming language into Java bytecode could theoretically run on the Java virtual machine for that computer. Sun's Java virtual machines implement a stack-oriented architecture, where data and parameters are loaded onto data structures in the computer's memory called "stacks," and instructions are then executed using the data and parameters from the stack. |
Answering Paragraph 2, Oracle admits that the Java programming language has syntax similar to C++, an existing object-oriented language. Oracle admits that the Java platform implemented a technique wherein programs written in the Java programming language can be compiled into intermediate instructions called “bytecode” to be executed on a computer that implements a Java “virtual machine.” Oracle admits that the virtual machine can be a program that receives and executes the bytecode on the particular computer upon which the virtual machine is running. Oracle admits that so long as there is a Java virtual machine available for a given computer system, any program compiled from the Java programming language into Java bytecode could theoretically run on the Java virtual machine for that computer. Oracle admits that Sun’s
Java bytecode instructions are stack-oriented, which is supported by Sun’s Java virtual machines, where data and parameters can be loaded onto data structures in the computer’s memory called “stacks” and instructions can then be executed using the data and parameters from the stack. Oracle denies any remaining allegations of Paragraph 2. |
3. |
Upon information and belief, the Java platform comprises many different components, including utilities to assist with the development of source code written in the Java programming language, a Java compiler that converts Java programming language statements to Java bytecode, a Java runtime environment consisting of Java virtual machines written to operate on a number of different computer platforms and a set of standard class libraries that can be accessed and reused by Java platform applications to perform common software functions, such as writing to files or sorting data. |
Answering Paragraph 3, Oracle admits that the Java platform includes many different components, including utilities to assist with the development of source code written in the Java programming language, a Java compiler that compiles Java programming language source code to Java bytecode, a Java runtime environment including Java virtual machines written to operate on a number of different computer platforms, and a set of extensive class libraries that can be accessed and reused by Java platform applications and can be used to perform software functions, such as writing to files or sorting data. Oracle denies any remaining allegations of Paragraph 3. |
4. |
Upon information and belief, Sun developed and distributed the Java Standard Edition ("Java SE"), along with other editions of the Java platform. Each of these editions of the Java platform contain a development environment, a Java compiler, Java virtual machine, a set of standard class libraries, and documentation files describing the functionality and operation of the specific Java platform edition. Though there are many similarities between each of these editions, one of the significant differences is that each edition provides a different set of standard class libraries based on the types of applications and environment at which each edition is targeted.
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Answering Paragraph 4, Oracle admits that Sun developed and distributed the Java Standard Edition (“Java SE”) and other editions of the Java platform. Oracle admits that Java platform editions may typically include a development environment, a Java compiler, Java virtual machine, a set of class libraries, and documentation. Oracle admits that Java platform editions may provide a different set of class libraries based on the types of applications and environment at which an edition is targeted. Oracle denies any remaining allegations of Paragraph 4. |
5. |
Upon information and belief, in response to the urging of open-source advocates and in the hopes of increasing the number of Java users, Sun officially announced that Java would become open-source. In 2006 and 2007, Sun released some but not all of the source code for Java SE (as well as the other editions of the Java Platform) under the terms of the GNU Public License, version 2 ("GPLv2") open source license. This open-source aspect of Java contributed to its widespread acceptance among software developers. | Answering Paragraph 5, Oracle admits that Sun released some source code for Java SE and other editions in 2006 and 2007 subject to the terms of the GNU Public License, version 2 (“GPLv2”). Oracle denies any remaining allegations of Paragraph 5. |
6. |
Upon information and belief, Sun also released the specifications for Sun's Java platform, including Sun's Java virtual machine, under a free-of-charge license that can be found at
http://java.sun.com/docs/
books/jls/third_edition/html/jcopyright.html and
http://java.sun.com/docs/books/
jvms/second_edition/html/Copyright.doc.html, respectively. The license allows developers to create "clean room" implementations of Sun's Java specifications. If those implementations demonstrate compatibility with the Java specification, then Sun would provide a license for any of its intellectual property needed to practice the specification, including patent rights and copyrights. One example of a "clean room" implementation of Sun's Java is Apache Harmony, developed by the Apache Software Foundation. The only way to demonstrate compatibility with the Java specification is by meeting all of the requirements of Sun's Technology Compatibility Kit ("TCK") for a particular edition of Sun's Java. Importantly, however, TCKs were only available from Sun, initially were not available as open source, were provided solely at Sun's discretion, and included several restrictions, such as additional licensing terms and fees. In essence, although developers were free to develop a competing Java virtual machine, they could not openly obtain an important component needed to freely benefit from Sun's purported open-sourcing of Java. |
Answering Paragraph 6, Oracle admits that Sun published its copyrighted Java
specifications and offered licenses to them under certain conditions. For example, in the case of the Java 2 Platform, Standard Edition, Sun permitted developers to create “clean room”
implementations of Sun’s Java specifications provided that they comply with all applicable license requirements, including requirements that they (i) include a complete implementation of the current version of the specification without subsetting or supersetting; (ii) implement all the interfaces and functionality of the required packages of the Java 2 Platform, Standard Edition, as defined by Sun, without subsetting or supersetting; (iii) do not add any additional packages, classes, or interfaces to the java.* or javax.* packages or their subpackages; (iv) pass all test suites relating to the most
recent published version of the specification of the Java 2 Platform, Standard Edition, that are available from Sun (the Technology Compatibility Kits) six (6) months prior to any beta release of the clean room implementation or upgrade thereto; (v) do not derive from Sun source code or
binary materials; and (vi) do not include any Sun source code or binary materials without an appropriate and separate license from Sun. Google is not in compliance with these license conditions. Developers were well aware that Sun’s specification license requires compatibility testing using Sun’s TCKs, which were and are available free of charge to qualifying universities, colleges, not-for-profit organizations, and individuals (see http://java.sun.com/scholarship/). Oracle lacks sufficient knowledge or information to admit or deny the remainder of the allegations of
Paragraph 6, and, on that basis, denies them. |
7. |
Sun came under significant criticism from members of the open source community, including Oracle Corp., for its refusal to fully open source Java. For example, in August of 2006, the Apache Software Foundation ("ASF"), a not-for-profit corporation that
provides organizational, legal, and financial support for open source software projects, attempted to obtain a TCK from Sun to verify Apache Harmony's compatibility with Java. Although Sun eventually offered to open source the TCK for Java SE, Sun included field of use ("FOU") restrictions that limited the circumstances under which Apache Harmony users could use the software that the ASF created, such as preventing the TCK from being executed on mobile devices. In April of 2007, the ASF wrote an open letter to Sun asking for either a TCK license without FOU restrictions, or an explanation as to why Sun was "protect[ing] portions of Sun's commercial Java business at the expense of ASF's open software" and violating "Sun's public promise that any Sun-led specification [such as Java] would be fully implementable and distributable as open source/free software." However, Sun continued to refuse the ASF's requests. |
Answering Paragraph 7, Oracle admits that the Apache Software Foundation (“Apache”) requested a TCK to verify Apache Harmony’s compatibility with Java in August 2006 and that Sun included field of use restrictions in the TCK license. Oracle admits that Apache wrote an open letter in April 2007 requesting a TCK license without field of use restrictions, and that Sun declined to withdraw the field of use restrictions. Oracle denies any remaining allegations of Paragraph 7. |
8. |
Oracle Corp., as a member (along with Google and ASF) of the Executive Committee ("EC") of the Java Community Process ("JCP"), the organization tasked with managing Java standards, voiced the same concerns regarding Sun's refusal to fully open source the Java platform. Later that year, in December of 2007, during a JCP EC meeting, Oracle Corp. proposed that the JCP should provide "a new, simplified IPR [intellectual property rights] Policy that permits the broadest number of implementations." At that same meeting, BEA Systems which at the time was in negotiations that resulted in Oracle Corp. purchasing BEA proposed a resolution that TCK licenses would be "offered without field of use restrictions . . . enabling the TCK to be used by organizations including Apache." Oracle Corp. voted in favor of the resolution. |
Answering Paragraph 8, Oracle admits that the Java Community ProcessSM “Executive Committee Meeting Summary for 4-5 December, 2007,” accessible via http://jcp.org/aboutJava/communityprocess/
summaries/2007/December07-summary.html, reported that “Oracle” proposed Resolution 1 as follows:
“It is the sense of the Executive Committee that the JCP become an open 2 independent vendor-neutral Standards Organization where all members
participate on a level playing field with the following characteristics:- members fund development and management expenses
- a legal entity with by-laws, governing body, membership, etc.
- a new, simplified IPR Policy that permits the broadest number of implementations
- stringent compatibility requirements
- dedicated to promoting the Java programming model
Furthermore, the EC shall put a plan in place to make such transition as soon as practical with minimal disruption to the Java Community.” Oracle admits that the same reported that Resolution 1 was seconded by BEA. Oracle admits that Oracle Corporation’s intent to acquire BEA Systems, Inc. was announced in October 2007 and completed in April 2008. Oracle denies any remaining allegations of Paragraph 8. |
9. |
Just over a year later, in February of 2009, Oracle Corp. reiterated its position on the open-source community's expectation of a fully open Java platform when it supported a motion that "TCK licenses must not be used to discriminate against or restrict compatible implementations of Java specifications by including field of use restrictions on the tested implementations or otherwise. Licenses containing such limitations do not meet the requirements of the JSPA, the agreement under which the JCP operates, and violate the
expectations of the Java community that JCP specs can be openly implemented." |
Answering Paragraph 9, Oracle admits that the Java Community ProcessSM “Executive Committee Meeting Minutes for 7 April, 2009,” accessible via http://jcp.org/aboutJava/communityprocess/
summaries/2009/April09-public-minutes.html, reported that:“Following the February 2009 EC meeting, the following motion for electronic (email) voting was proposed by Apache Software Foundation
and seconded by Intel Corp.
“TCK licenses must not be used to discriminate against or restrict compatible implementations of Java specifications by including field of
use restrictions on the tested implementations or otherwise. Licenses containing such limitations do not meet the requirements of the JSPA, the
agreement under which the JCP operates, and violate the expectations of
the Java community that JCP specs can be openly implemented.” Oracle admits that the same reported that “Oracle” voted “yes.” Oracle denies any remaining allegations of Paragraph 9. |
10. |
Only two months later, in April of 2009, Oracle Corp. announced that it would be acquiring Sun (renamed Oracle America after the acquisition was completed in January of 2010). Since that time, and directly contrary to Oracle Corp.'s public actions and statements, as well as its own proposals as an executive member of the JCP, Oracle Corp. and Sun (now Oracle America) have ignored the open source community's requests to fully open-source the Java platform. |
Answering Paragraph 10, Oracle admits that Oracle Corporation announced in April of 2009 that Oracle would be acquiring Sun. Oracle’s announcement is accessible via http://www.oracle.com/us/
corporate/press/018363. Oracle admits that Sun was subsequently renamed “Oracle America, Inc.” Oracle denies any remaining allegations of Paragraph 10. |
11. |
B. The Open Handset Alliance and Development of the Android Platform The Android Platform ("Android") is a freely-distributed, open-source software stack for mobile devices that includes an operating system, middleware and key mobile applications. Android was released in 2007 by a group of seventy-eight technology and mobile companies known as the Open Handset Alliance ("OHA") who have come together to accelerate innovation in mobile devices and offer consumers a richer, less expensive, and better mobile experience. The members of the OHA, which include Google, mobile operators, handset manufacturers, semiconductor companies, software companies and commercialization companies, are each strongly committed to greater openness in the mobile ecosystem. |
B. The Open Handset Alliance and Development of the Android Platform Answering Paragraph 11, Oracle lacks sufficient knowledge or information to admit or deny the allegations of Paragraph 11, and, on that basis, denies them. |
12. |
The OHA believes that an open platform a platform that provides equal access to any who would choose to develop software for the platform is essential to allow wireless carriers, handset manufacturers, software developers and others to more rapidly bring innovative ideas to the marketplace and to better respond to consumers' demands. An open platform also ensures that there is no threat of a central point of failure, so that no single industry player can restrict or control the innovations of any other. The objective of Android is an open and shared product that each contributor can freely tailor and customize. The members of the OHA, including Google, have invested heavily in Android by contributing significant intellectual property as well as economic and engineering resources to the development and maintenance of Android. | Answering Paragraph 12, Oracle lacks sufficient knowledge or information to admit or deny the allegations of Paragraph 12, and, on that basis, denies them.
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13. |
The Android platform includes, among other things, the Android Software Development Kit ("SDK") and the Dalvik Virtual Machine ("VM"). The Dalvik VM relies on a version of the Linux kernel for core system services such as security, memory management, process management, network stack, and driver model, and as an abstraction layer between the hardware and the rest of the software stack. The core class libraries of the Dalvik VM incorporate a subset of Apache Harmony, a clean room, open source implementation of Java from the Apache Software Foundation. Other than the Harmony libraries, the Android platform including, without limitation, the Dalvik VM was independently developed by the OHA. | Answering Paragraph 13, Oracle lacks sufficient knowledge or information to admit or deny the allegations of Paragraph 13, and, on that basis, denies them.
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14. |
The Android Open Source Project ("AOSP") is tasked with the maintenance and further development of Android, including incorporating code and submissions from the community of developers who contribute to Android and the tens of thousands of developers who create applications for Android. The goal of the Android Open Source Project (AOSP) is to ensure that the open-source Android software is implemented as widely and consistently as possible, to the benefit of the developer and user communities, and others involved in Android. Google, along with several corporate partners and volunteer technology enthusiasts, contributes resources, including engineers and financial support, to the AOSP. | Answering Paragraph 14, Oracle lacks sufficient knowledge or information to admit or deny the allegations of Paragraph 14, and, on that basis, denies them.
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15. |
The information and source code for the Android Platform is openly and freely available for developers, manufacturers, or any member of the general public to download at
http://source.android.com and http://developer.android.com. The majority of the Android software is made available under the permissive open source license terms of the Apache Software License, 2.0 ("Apache 2.0"). Certain aspects of Android, such as the Linux kernel patches, are made available under the GPLv2 license. | Answering Paragraph 15, Oracle lacks sufficient knowledge or information to admit or deny the allegations of Paragraph 15, and, on that basis, denies them.
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16. | Developers are free to modify the source code of the Android platform to fit their particular purpose. Android's permissive open-source license allows a developer to adopt the Android platform and freely build software and enhancements on top of the platform, while maintaining the flexibility to release the software and enhancements to the public under either an open source license, or alternatively under a commercial license, which would protect the
developer's proprietary investment in Android. |
Answering Paragraph 16, Oracle lacks sufficient knowledge or information to admit or deny the allegations of Paragraph 16, and, on that basis, denies them.
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17. |
Google does not receive any payment, fee, royalty, or other remuneration for its contributions to the Android Platform. | Answering Paragraph 17, Oracle lacks sufficient knowledge or information to admit or deny the allegations of Paragraph 17, and, on that basis, denies them.
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18. | C. Android and the Java Programming Language Developers for Android can create software applications for Android-based mobile devices using various programming languages, including the Java programming language. For use on the Android platform, these software applications are converted into a set of intermediate instructions i.e., Dalvik "bytecode," typically stored in files in the Dalvik Executable (.dex) format with the "dx" tool included with the Android platform. These .dex files can be executed on any mobile device with a Dalvik VM. The Dalvik VM implements a register-based architecture (distinct from a stack-oriented architecture), where data and parameters are loaded directly into virtual machine registers. The Dalvik VM and .dex format are optimized for battery-powered mobile devices that are more limited in terms of computing and memory resources than desktop computers. | C. Android and the Java Programming Language Answering Paragraph 18, Oracle lacks sufficient knowledge or information to admit or deny the allegations of Paragraph 18, and, on that basis, denies them. |
19. | Although software applications for the Android platform may be written in the Java programming language, the Dalvik bytecode is distinct and different from Java bytecode. The Dalvik VM is not a Java VM. | Answering Paragraph 19, Oracle lacks sufficient knowledge or information to admit or deny the allegations of Paragraph 19, and, on that basis, denies them. |
20. | The Android Platform has been a success in the mobile handset industry. Although Android was a latecomer to the smartphone market first becoming generally available in late 2008 there are currently approximately ninety different Android-based mobile devices made by over twenty different manufacturers available for purchase in dozens of countries. Indeed, approximately 200,000 Android-based handsets are activated every day on over fifty different wireless carriers. Android Market a store where developers can sell applications ("apps") that they create for Android-based devices has over 80,000 apps available for download. | Answering Paragraph 20, Oracle lacks sufficient knowledge or information to admit or deny the allegations of Paragraph 20, and, on that basis, denies them. |
21. | Android's popularity has proven to be a catalyst for the Java open source community and the increased use of the Java programming language. Indeed, when Android was
first released in November of 2007, Sun CEO Jonathan Schwartz confirmed this fact, congratulating Android and stating that "needless to say, Google and the Open Handset Alliance just strapped another set of rockets to the community's momentum and to the vision defining opportunity across our (and other) planets." | Answering Paragraph 21, Oracle lacks sufficient knowledge or information to admit or deny the allegations of Paragraph 21, and, on that basis, denies them. |
22. | The success of the Android platform is due in large part to its open nature, which benefits the entire open source community of consumers, developers, manufacturers, and mobile operators. Android's permissive open source license allows developers and manufacturers to innovate rapidly under their own terms while simultaneously protecting their proprietary intellectual property, if so desired. Because Android provides open and comprehensive access to handset capabilities and developer tools, developers experience increased productivity and are better able to optimize their Android applications. Mobile operators and handset manufacturers benefit from the innovation, and have great flexibility to customize Android to differentiate their product lines. Handset manufacturers also benefit from lower software costs and faster time-to- market for handsets. Finally, and consistent with the mission of the Open Handset Alliance, all of the benefits to developers, manufacturers, and mobile operators are passed on to consumers who receive more innovative and cost-effective mobile devices and services, and a rich portfolio of applications, that more rapidly respond to their needs and demands. | Answering Paragraph 22, Oracle lacks sufficient knowledge or information to admit or deny the allegations of Paragraph 22, and, on that basis, denies them. |
23. | E. Oracle’s Amended Complaint In its Amended Complaint, Oracle asserts that Google, by way of the Android Platform and certain of its components, infringes U.S. Reissue Patent No. RE38,104 ("the `104 reissue patent"), and U.S. Patent Nos. 5,966,702 ("the `702 patent"), 6,061,520 ("the `520 patent"), 6,125,447 ("the `447 patent"), 6,192,476 ("the `476 patent"), 6,910,205 ("the `205 patent"), and 7,426,720 ("the `720 patent") (collectively "the Patents-in-Suit"). Oracle also asserts that Google infringes and induces Android users and developers to infringe the copyrights in the works that are the subject of the copyright registrations that are attached to Oracle's Amended Complaint as Exhibit H (the "Asserted Copyrights"). | E. Oracle’s Amended Complaint Answering Paragraph 23, Oracle admits that Oracle asserts that Google infringes U.S. Reissue Patent No. RE38,104 (“the ’104 reissue patent”), and U.S. Patent Nos. 5,966,702 (“the ’702 patent”), 6,061,520 (“the ’520 patent”), 6,125,447 (“the ’447 patent”), 6,192,476 (“the ’476 patent”), 6,910,205 (“the ’205 patent”), and 7,426,720 (“the ’720 patent”) (collectively “the Patents-in-Suit”). Oracle admits that Oracle asserts that Google infringes and induces Android users and developers to infringe certain copyrights attached to Oracle’s Complaint as Exhibit H (“the Asserted Copyrights”). Oracle denies any remaining allegations of Paragraph 23. |
24. | Google does not infringe any valid and enforceable claim of the Patents-in-Suit, either directly or indirectly, and does not infringe any valid copyright rights of Oracle, either directly or indirectly. | Answering Paragraph 24, Oracle denies the allegations of Paragraph 24. |
25. | Consequently, there is an actual case and controversy between the parties over the patents-in-suit. | Answering Paragraph 25, Oracle admits that an actual case or controversy exists between Google and Oracle over the Patents-in-Suit. Oracle denies any remaining allegations of Paragraph 25. |
26. | COUNT ONE Declaratory Judgment of Non-Infringement of U.S. Reissue Patent No. RE 38,104 Google restates and incorporates by reference its allegations in paragraphs 1-25 of its Counterclaims. |
COUNT ONE Declaratory Judgment of Non-Infringement of U.S. Reissue Patent No. RE 38,104 Answering Paragraph 26, Oracle incorporates by reference its responses to the
allegations of Paragraphs 1 through 25 of the Counterclaims. |
27. | An actual case or controversy exists between Google and Oracle as to whether the `104 reissue patent is infringed by Google. | Answering Paragraph 27, Oracle admits that an actual case or controversy exists
between Google and Oracle as to whether the ’104 reissue patent is infringed by Google. |
28. | A judicial declaration is necessary and appropriate so that Google may ascertain its rights regarding the `104 reissue patent. | Answering Paragraph 28, Oracle denies the allegations of Paragraph 28. |
29. | Google has not infringed and does not infringe, directly or indirectly, any valid 15 and enforceable claim of the `104 reissue patent. | Answering Paragraph 29, Oracle denies the allegations of Paragraph 29. |
30. | This is an exceptional case under 35 U.S.C. § 285 because Oracle filed its Amended Complaint with knowledge of the facts stated in this Counterclaim. | Answering Paragraph 30, Oracle admits that this case is exceptional and alleges that
Oracle is entitled to an award of attorneys’ fees under 35 U.S.C. § 285. Oracle denies any remaining allegations of Paragraph 30. |
31. | COUNT TWO Declaratory Judgment of Invalidity of U.S. Reissue Patent No. RE 38,104 Google restates and incorporates by reference its allegations in paragraphs 1-30 of its Counterclaims | COUNT TWO Declaratory Judgment of Invalidity of U.S. Reissue Patent No. RE 38,104 Answering Paragraph 31, Oracle incorporates by reference its responses to the
allegations of Paragraphs 1 through 30 of the Counterclaims. |
32. | An actual case or controversy exists between Google and Oracle as to whether the `104 reissue patent is invalid. | Answering Paragraph 32, Oracle lacks sufficient knowledge or information to admit or deny the allegations of Paragraph 32, and, on that basis, denies them. |
33. | A judicial declaration is necessary and appropriate so that Google may ascertain its rights as to whether the `104 reissue patent is invalid. | Answering Paragraph 33, Oracle denies the allegations of Paragraph 33. |
34. | The `104 reissue patent is invalid because it fails to meet the "conditions for patentability" of 35 USC §§ 101, 102, 103, and/or 112 because the alleged invention thereof
lacks utility; is taught by, suggested by, and/or, obvious in view of, the prior art; and/or is not adequately supported by the written description of the patented invention, and no claim of the `104 reissue patent can be properly construed to cover any of Google's products.
| Answering Paragraph 34, Oracle denies the allegations of Paragraph 34. |
35. | The `104 reissue patent is invalid under 35 U.S.C. §§ 251 and 252 on the grounds that the reissue patent enlarged the scope of one or more claims of the original patent more than two years from the grant of the original patent. | Answering Paragraph 35, Oracle denies the allegations of Paragraph 35. |
36. | This is an exceptional case under 35 U.S.C. § 285 because Oracle filed its Amended Complaint with knowledge of the facts stated in this Counterclaim. | Answering Paragraph 36, Oracle admits that this case is exceptional and alleges that
Oracle is entitled to an award of attorneys’ fees under 35 U.S.C. § 285. Oracle denies any remaining allegations of Paragraph 36. |
37. | COUNT THREE Declaratory Judgment of Non-Infringement of U.S. Patent No. 5,966,702 Google restates and incorporates by reference its allegations in paragraphs 1-36 of its Counterclaims. | COUNT THREE Declaratory Judgment of Non-Infringement of U.S. Patent No. 5,966,702 Answering Paragraph 37, Oracle incorporates by reference its responses to the
allegations of Paragraphs 1 through 36 of the Counterclaims. |
38. | An actual case or controversy exists between Google and Oracle as to whether the `702 patent is infringed by Google. | Answering Paragraph 38, Oracle admits that an actual case or controversy exists
between Google and Oracle as to whether the ’702 patent is infringed by Google. |
39. | A judicial declaration is necessary and appropriate so that Google may ascertain its rights regarding the `702 patent. | Answering Paragraph 39, Oracle denies the allegations of Paragraph 39. |
40. | Google has not infringed and does not infringe, directly or indirectly, any valid and enforceable claim of the `702 patent. | Answering Paragraph 40, Oracle denies the allegations of Paragraph 40. |
41. | This is an exceptional case under 35 U.S.C. § 285 because Oracle filed its Amended Complaint with knowledge of the facts stated in this Counterclaim. | Answering Paragraph 41, Oracle admits that this case is exceptional and alleges that
Oracle is entitled to an award of attorneys’ fees under 35 U.S.C. § 285. Oracle denies any remaining allegations of Paragraph 41. |
42. | Google restates and incorporates by reference its allegations in paragraphs 1-41 of its Counterclaims. |
Answering Paragraph 42, Oracle incorporates by reference its responses to the allegations of Paragraphs 1 through 41 of the Counterclaims. |
43. | An actual case or controversy exists between Google and Oracle as to whether the `702 patent is invalid. | Answering Paragraph 43, Oracle lacks sufficient knowledge or information to admit or deny the allegations of Paragraph 43, and, on that basis, denies them. |
44. | A judicial declaration is necessary and appropriate so that Google may ascertain its rights as to whether the `702 patent is invalid. | Answering Paragraph 44, Oracle denies the allegations of Paragraph 44. |
45. | The `702 patent is invalid because it fails to meet the "conditions for patentability" of 35 USC §§ 101, 102, 103, and/or 112 because the alleged invention thereof lacks utility; is taught by, suggested by, and/or, obvious in view of, the prior art; and/or is not adequately supported by the written description of the patented invention, and no claim of the `702 patent can be properly construed to cover any of Google's products. | Answering Paragraph 45, Oracle denies the allegations of Paragraph 45. |
46. | COUNT FOUR Declaratory Judgment of Invalidity of U.S. Patent No. 5,966,702 This is an exceptional case under 35 U.S.C. § 285 because Oracle filed its Amended Complaint with knowledge of the facts stated in this Counterclaim. | COUNT FOUR Declaratory Judgment of Invalidity of U.S. Patent No. 5,966,702
Answering Paragraph 46, Oracle admits that this case is exceptional and alleges that Oracle is entitled to an award of attorneys’ fees under 35 U.S.C. § 285. Oracle denies any remaining allegations of Paragraph 46. |
47. | COUNT FIVE Declaratory Judgment of Non-Infringement of U.S. Patent No. 6,061,520 Google restates and incorporates by reference its allegations in paragraphs 1-46 of its Counterclaims. | COUNT FIVE Declaratory Judgment of Non-Infringement of U.S. Patent No. 6,061,520 Answering Paragraph 47, Oracle incorporates by reference its responses to the
allegations of Paragraphs 1 through 46 of the Counterclaims. |
48. | An actual case or controversy exists between Google and Oracle as to whether the `520 patent is infringed by Google. | Answering Paragraph 48, Oracle admits that an actual case or controversy exists
between Google and Oracle as to whether the ’520 patent is infringed by Google. |
49 | A judicial declaration is necessary and appropriate so that Google may ascertain its rights regarding the `520 patent. | Answering Paragraph 49, Oracle denies the allegations of Paragraph 49. |
50. | Google has not infringed and does not infringe, directly or indirectly, any valid and enforceable claim of the `520 patent. | Answering Paragraph 50, Oracle denies the allegations of Paragraph 50. |
51. | This is an exceptional case under 35 U.S.C. § 285 because Oracle filed its Amended Complaint with knowledge of the facts stated in this Counterclaim. | Answering Paragraph 51, Oracle admits that this case is exceptional and alleges that
Oracle is entitled to an award of attorneys’ fees under 35 U.S.C. § 285. Oracle denies any remaining allegations of Paragraph 51. |
52. | COUNT SIX Declaratory Judgment of Invalidity of U.S. Patent No. 6,061,520 Google restates and incorporates by reference its allegations in paragraphs 151 of its Counterclaims. | COUNT SIX Declaratory Judgment of Invalidity of U.S. Patent No. 6,061,520
Answering Paragraph 52, Oracle incorporates by reference its responses to the allegations of Paragraphs 1 through 51 of the Counterclaims. |
53. | An actual case or controversy exists between Google and Oracle as to whether the `520 patent is invalid. | Answering Paragraph 53, Oracle lacks sufficient knowledge or information to admit or deny the allegations of Paragraph 53, and, on that basis, denies them. |
54. | . A judicial declaration is necessary and appropriate so that Google may ascertain its rights as to whether the `520 patent is invalid. | Answering Paragraph 54, Oracle denies the allegations of Paragraph 54. |
55. | The `520 patent is invalid because it fails to meet the "conditions for patentability" of 35 USC §§ 101, 102, 103, and/or 112 because the alleged invention thereof lacks utility; is taught by, suggested by, and/or, obvious in view of, the prior art; and/or is not adequately supported by the written description of the patented invention, and no claim of the `520 patent can be properly construed to cover any of Google's products. |
Answering Paragraph 55, Oracle denies the allegations of Paragraph 55. |
56. | This is an exceptional case under 35 U.S.C. § 285 because Oracle filed its Amended Complaint with knowledge of the facts stated in this Counterclaim. | Answering Paragraph 56, Oracle admits that this case is exceptional and alleges that
Oracle is entitled to an award of attorneys’ fees under 35 U.S.C. § 285. Oracle denies any remaining allegations of Paragraph 56. |
57. | COUNT SEVEN Declaratory Judgment of Non-Infringement of U.S. Patent No. 6,125,447 Google restates and incorporates by reference its allegations in paragraphs 1-56 of its Counterclaims.
| COUNT SEVEN Declaratory Judgment of Non-Infringement of U.S. Patent No. 6,125,447 Answering Paragraph 57, Oracle incorporates by reference its responses to the
allegations of Paragraphs 1 through 56 of the Counterclaims. |
58. | An actual case or controversy exists between Google and Oracle as to whether the `447 patent is infringed by Google. | Answering Paragraph 58, Oracle admits that an actual case or controversy exists
between Google and Oracle as to whether the ’447 patent is infringed by Google. |
59. | A judicial declaration is necessary and appropriate so that Google may ascertain its rights regarding the `447 patent.
| Answering Paragraph 59, Oracle denies the allegations of Paragraph 59. |
60. | Google has not infringed and does not infringe, directly or indirectly, any valid and enforceable claim of the `447 patent | Answering Paragraph 60, Oracle denies the allegations of Paragraph 60. |
61. | This is an exceptional case under 35 U.S.C. § 285 because Oracle filed its Amended Complaint with knowledge of the facts stated in this Counterclaim. | Answering Paragraph 61, Oracle admits that this case is exceptional and alleges that
Oracle is entitled to an award of attorneys’ fees under 35 U.S.C. § 285. Oracle denies any remaining allegations of Paragraph 61. |
62. | COUNT EIGHT Declaratory Judgment of Invalidity of U.S. Patent No. 6,125,447 Google restates and incorporates by reference its allegations in paragraphs 1-61 of its Counterclaims. | COUNT EIGHT Declaratory Judgment of Invalidity of U.S. Patent No. 6,125,447 Answering Paragraph 62, Oracle incorporates by reference its responses to the allegations of Paragraphs 1 through 61 of the Counterclaims. |
63. | An actual case or controversy exists between Google and Oracle as to whether the `447 patent is invalid. | Answering Paragraph 63, Oracle lacks sufficient knowledge or information to admit or deny the allegations of Paragraph 63, and, on that basis, denies them. |
64. | A judicial declaration is necessary and appropriate so that Google may ascertain its rights as to whether the `447 patent is invalid. | Answering Paragraph 64, Oracle denies the allegations of Paragraph 64. |
65. | The `447 patent is invalid because it fails to meet the "conditions for patentability" of 35 USC §§ 101, 102, 103, and/or 112 because the alleged invention thereof lacks utility; is taught by, suggested by, and/or, obvious in view of, the prior art; and/or is not adequately supported by the written description of the patented invention, and no claim of the `447 patent can be properly construed to cover any of Google's products. | Answering Paragraph 65, Oracle denies the allegations of Paragraph 65. |
66. | This is an exceptional case under 35 U.S.C. § 285 because Oracle filed its Amended Complaint with knowledge of the facts stated in this Counterclaim. | Answering Paragraph 66, Oracle admits that this case is exceptional and alleges that
Oracle is entitled to an award of attorneys’ fees under 35 U.S.C. § 285. Oracle denies any remaining allegations of Paragraph 66. |
67. | COUNT NINE Declaratory Judgment of Non-Infringement of U.S. Patent No. 6,192,476 Google restates and incorporates by reference its allegations in paragraphs 1-66 of its Counterclaims. | COUNT NINE Declaratory Judgment of Non-Infringement of U.S. Patent No. 6,192,476 Answering Paragraph 67, Oracle incorporates by reference its responses to the
allegations of Paragraphs 1 through 66 of the Counterclaims. |
68. | An actual case or controversy exists between Google and Oracle as to whether the `476 patent is infringed by Google. | Answering Paragraph 68, Oracle admits that an actual case or controversy exists
between Google and Oracle as to whether the ’476 patent is infringed by Google. |
69. | A judicial declaration is necessary and appropriate so that Google may ascertain its rights regarding the `476 patent. | Answering Paragraph 69, Oracle denies the allegations of Paragraph 69. |
70. | Google has not infringed and does not infringe, directly or indirectly, any valid and enforceable claim of the `476 patent. | Answering Paragraph 70, Oracle denies the allegations of Paragraph 70. |
71. | This is an exceptional case under 35 U.S.C. § 285 because Oracle filed its Amended Complaint with knowledge of the facts stated in this Counterclaim. | Answering Paragraph 71, Oracle admits that this case is exceptional and alleges that
Oracle is entitled to an award of attorneys’ fees under 35 U.S.C. § 285. Oracle denies any remaining allegations of Paragraph 71. |
72. | COUNT TEN Declaratory Judgment of Invalidity of U.S. Patent No. 6,192,476 Google restates and incorporates by reference its allegations in paragraphs 171 of its Counterclaims. | COUNT TEN Declaratory Judgment of Invalidity of U.S. Patent No. 6,192,476 Answering Paragraph 72, Oracle incorporates by reference its responses to the allegations of Paragraphs 1 through 71 of the Counterclaims. |
73. | An actual case or controversy exists between Google and Oracle as to whether the `476 patent is invalid. | Answering Paragraph 73, Oracle lacks sufficient knowledge or information to admit or deny the allegations of Paragraph 73, and, on that basis, denies them. |
74. | A judicial declaration is necessary and appropriate so that Google may ascertain its rights as to whether the `476 patent is invalid. | Answering Paragraph 74, Oracle denies the allegations of Paragraph 74. |
75. | The `476 patent is invalid because it fails to meet the "conditions for patentability" of 35 USC §§ 101, 102, 103, and/or 112 because the alleged invention thereof lacks utility; is taught by, suggested by, and/or, obvious in view of, the prior art; and/or is not adequately supported by the written description of the patented invention, and no claim of the `476 patent can be properly construed to cover any of Google's products. | Answering Paragraph 75, Oracle denies the allegations of Paragraph 75. |
76. | This is an exceptional case under 35 U.S.C. § 285 because Oracle filed its Amended Complaint with knowledge of the facts stated in this Counterclaim. | Answering Paragraph 76, Oracle admits that this case is exceptional and alleges that
Oracle is entitled to an award of attorneys’ fees under 35 U.S.C. § 285. Oracle denies any remaining allegations of Paragraph 76. |
77. | COUNT ELEVEN Declaratory Judgment of Non-Infringement of U.S. Patent No. 6,910,205 Google restates and incorporates by reference its allegations in paragraphs 1-76 of its Counterclaims. | COUNT ELEVEN Declaratory Judgment of Non-Infringement of U.S. Patent No. 6,910,205 Answering Paragraph 77, Oracle incorporates by reference its responses to the
allegations of Paragraphs 1 through 76 of the Counterclaims. |
78. | An actual case or controversy exists between Google and Oracle as to whether the `205 patent is infringed by Google. | Answering Paragraph 78, Oracle admits that an actual case or controversy exists
between Google and Oracle as to whether the ’205 patent is infringed by Google. |
79. | A judicial declaration is necessary and appropriate so that Google may ascertain its rights regarding the `205 patent. | Answering Paragraph 79, Oracle denies the allegations of Paragraph 79. |
80. | Google has not infringed and does not infringe, directly or indirectly, any valid and enforceable claim of the `205 patent. | Answering Paragraph 80, Oracle denies the allegations of Paragraph 80. |
81. | This is an exceptional case under 35 U.S.C. § 285 because Oracle filed its Amended Complaint with knowledge of the facts stated in this Counterclaim. | Answering Paragraph 81, Oracle admits that this case is exceptional and alleges that
Oracle is entitled to an award of attorneys’ fees under 35 U.S.C. § 285. Oracle denies any remaining allegations of Paragraph 81. |
82. | COUNT TWELVE Declaratory Judgment of Invalidity of U.S. Patent No. 6,910,205 Google restates and incorporates by reference its allegations in paragraphs 181 of its Counterclaims. | COUNT TWELVE Declaratory Judgment of Invalidity of U.S. Patent No. 6,910,205 Answering Paragraph 82, Oracle incorporates by reference its responses to the allegations of Paragraphs 1 through 81 of the Counterclaims.
|
83. | An actual case or controversy exists between Google and Oracle as to whether the `205 patent is invalid. | Answering Paragraph 83, Oracle lacks sufficient knowledge or information to admit or deny the allegations of Paragraph 83, and, on that basis, denies them. |
84. | A judicial declaration is necessary and appropriate so that Google may ascertain its rights as to whether the `205 patent is invalid. | Answering Paragraph 84, Oracle denies the allegations of Paragraph 84. |
85. | The `205 patent is invalid because it fails to meet the "conditions for patentability" of 35 USC §§ 101, 102, 103, and/or 112 because the alleged invention thereof lacks utility; is taught by, suggested by, and/or, obvious in view of, the prior art; and/or is not adequately supported by the written description of the patented invention, and no claim of the `205 patent can be properly construed to cover any of Google's products. | Answering Paragraph 85, Oracle denies the allegations of Paragraph 85. |
86. | This is an exceptional case under 35 U.S.C. § 285 because Oracle filed its Amended Complaint with knowledge of the facts stated in this Counterclaim. | Answering Paragraph 86, Oracle admits that this case is exceptional and alleges that
Oracle is entitled to an award of attorneys’ fees under 35 U.S.C. § 285. Oracle denies any remaining allegations of Paragraph 86. |
87. | COUNT THIRTEEN Declaratory Judgment of Non-Infringement of U.S. Patent No. 7,426,720 Google restates and incorporates by reference its allegations in paragraphs 1-86 of its Counterclaims. | COUNT THIRTEEN Declaratory Judgment of Non-Infringement of U.S. Patent No. 7,426,720 Answering Paragraph 87, Oracle incorporates by reference its responses to the
allegations of Paragraphs 1 through 86 of the Counterclaims. |
88. | An actual case or controversy exists between Google and Oracle as to whether the `720 patent is infringed by Google. | Answering Paragraph 88, Oracle admits that an actual case or controversy exists
between Google and Oracle as to whether the ’720 patent is infringed by Google. |
89. | A judicial declaration is necessary and appropriate so that Google may ascertain its rights regarding the `720 patent. | Answering Paragraph 89, Oracle denies the allegations of Paragraph 89. |
90. | Google has not infringed and does not infringe, directly or indirectly, any valid and enforceable claim of the `720 patent. | Answering Paragraph 90, Oracle denies the allegations of Paragraph 90. |
91. | This is an exceptional case under 35 U.S.C. § 285 because Oracle filed its Amended Complaint with knowledge of the facts stated in this Counterclaim. | Answering Paragraph 91, Oracle admits that this case is exceptional and alleges that
Oracle is entitled to an award of attorneys’ fees under 35 U.S.C. § 285. Oracle denies any remaining allegations of Paragraph 91. |
92. | COUNT FOURTEEN Declaratory Judgment of Invalidity of U.S. Patent No. 7,426,720 Google restates and incorporates by reference its allegations in paragraphs 191 of its Counterclaims. | COUNT FOURTEEN Declaratory Judgment of Invalidity of U.S. Patent No. 7,426,720 Answering Paragraph 92, Oracle incorporates by reference its responses to the allegations of Paragraphs 1 through 91 of the Counterclaims. |
93. | An actual case or controversy exists between Google and Oracle as to whether the `720 patent is invalid. | Answering Paragraph 93, Oracle lacks sufficient knowledge or information to admit or deny the allegations of Paragraph 93, and, on that basis, denies them. |
94. | A judicial declaration is necessary and appropriate so that Google may ascertain its rights as to whether the `720 patent is invalid. | Answering Paragraph 94, Oracle denies the allegations of Paragraph 94. |
95. | The `720 patent is invalid because it fails to meet the "conditions for patentability" of 35 USC §§ 101, 102, 103, and/or 112 because the alleged invention thereof lacks utility; is taught by, suggested by, and/or, obvious in view of, the prior art; and/or is not adequately supported by the written description of the patented invention, and no claim of the `720 patent can be properly construed to cover any of Google's products. | Answering Paragraph 95, Oracle denies the allegations of Paragraph 95. |
96. | This is an exceptional case under 35 U.S.C. § 285 because Oracle filed its Amended Complaint with knowledge of the facts stated in this Counterclaim. | Answering Paragraph 96, Oracle admits that this case is exceptional and alleges that Oracle is entitled to an award of attorneys’ fees under 35 U.S.C. § 285. Oracle denies any remaining allegations of Paragraph 96. |
97. | COUNT FIFTEEN Declaratory Judgment of Non-Infringement of the Asserted Copyrights Google restates and incorporates by reference its allegations in paragraphs 1-96 of its Counterclaims. | COUNT FIFTEEN Declaratory Judgment of Non-Infringement of the Asserted Copyrights Answering Paragraph 97, Oracle incorporates by reference its responses to the
allegations of Paragraphs 1 through 96 of the Counterclaims. |
98. | An actual case or controversy exists between Google and Oracle as to whether the Asserted Copyrights are infringed by Google. | Answering Paragraph 98, Oracle admits that an actual case or controversy exists
between Google and Oracle as to whether the Asserted Copyrights are infringed by Google. |
99. | A judicial declaration is necessary and appropriate so that Google may ascertain its rights regarding the Asserted Copyrights. | Answering Paragraph 99, Oracle denies the allegations of Paragraph 99. |
100 | Google has not infringed and does not infringe, directly or indirectly, the Asserted Copyrights. | Answering Paragraph 100, Oracle denies the allegations of Paragraph 100. |
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- Microsoft arranges 'safe' Silverlight and HTML marriage - Authored by: tiger99 on Friday, December 03 2010 @ 05:22 AM EST
- Re:"WikiLeaks site down, Assange close to arrest" - Authored by: Tim on Friday, December 03 2010 @ 05:31 AM EST
- Repost after censoring: Apple vs. Motorola: now 42 patents-in-suit - Authored by: Anonymous on Friday, December 03 2010 @ 05:57 AM EST
- Uncle Sam, Wikileaks wage cyber guerilla war - Authored by: Anonymous on Friday, December 03 2010 @ 09:00 AM EST
- Microsoft arranges 'safe' Silverlight and HTML marriage - Authored by: Anonymous on Friday, December 03 2010 @ 10:57 AM EST
- Microsoft Goes on the Offensive after U.S. Government Opts for Google Products - Authored by: Gringo on Saturday, December 04 2010 @ 08:22 AM EST
- FISMA - Authored by: Anonymous on Saturday, December 04 2010 @ 02:08 PM EST
- Novell's Final Earnings Report? - Authored by: Anonymous on Saturday, December 04 2010 @ 08:42 AM EST
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Authored by: bugstomper on Thursday, December 02 2010 @ 04:35 AM EST |
Find a Comes v Microsoft document, transcribe it with HTML markup.
Post it
here in a comment as Plain Old Text
with the HTML tags to make it easy for
PJ to copy and paste.
The easy way to find a document that needs
transcriptions is on the
Comes v.
Microsoft Exhibits by Number pages.
Scroll down to find one without a
transcription.
Shell script to display how many Comes documents have
not yet had descriptions or transcripts posted
curl -s \
"http://groklaw.net/staticpages/index.php?page=ComesExhN0[1-4]" | \
grep -c '<td></td>'
Shell script to display the numbers of
the next N documents whose
descriptions or transcripts have not yet been
posted. Change the 5 to however many of the next available document numbers
you want to see.
n=5 ; \
curl -s \
"http://groklaw.net/staticpages/index.php?page=ComesExhN0[1-4]" | \
grep -m $n -B 1 '<td></td>' | \
sed -n
's/.*"E\(.*\)"><a.*$/\1/p'
[ Reply to This | # ]
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Authored by: Anonymous on Thursday, December 02 2010 @ 05:40 AM EST |
So Oracle (or more accurately their Lawyers) can't use a web Browser to look at
the URL's provided and read what's their for themselves?
To say that they have no knowledge of Android and its software is frankly
unacceptable.
Report card score on this? Must do better!
[ Reply to This | # ]
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Authored by: Anonymous on Thursday, December 02 2010 @ 07:30 AM EST |
What is missing in this analysis is that Oracle actually does not restrict the
code released under the GPL through OpenJDK. Their own FAQ says
so:
Q:
Can someone create software that doesn't even
implement Java, but uses pieces of the OpenJDK code commons? What are the
limitations, if any?
A:
Yes. There are no limitations. But there is an
obligation to meet the requirements of the GPL (plus Classpath and Assembly
exceptions if appropriate).
And they even offer a TCK for testing
the code WITHOUT any (field of use) restrictions (because those
would be incompatible with the GPL):
http://openjdk.jav
a.net/legal/openjdk-tck-license.pdf
They even offered this to Cacao, a independent developed Java runtime
that can use either the GNU Classpath core libraries or the OpenJDK core
libraries:
http
://openjdk.java.net/groups/conformance/JckAccess/jck-access.html.
Cacao can
be compared with Dalvik, it is a runtime for java byte code that combined with a
class library (either GNU Classpath or the one from OpenJDK) allows you to run
programs compiled for and written in the java programming language.
What is
even stranger, is that Google itself is on that list. So Google actually has
access to both the code under the GPL, which Oracle says can be used free for
any purpose, and to the Test Compatibility Kit under unrestricted terms to show
their compatibility...
It is a mystery to me why these facts aren't
mentioned by any of the parties in this case. [ Reply to This | # ]
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Authored by: dyfet on Thursday, December 02 2010 @ 07:44 AM EST |
It almost seems as if Oracle intends on making Java as undesirable to use as
.net. Hmm, maybe it is time to look at parrot (http://www.parrot.org).
While Oracle can certainly choose to present it's "current"
interpretation of how it wishes to license Java going forward, Google's work was
from the time that Sun's interpretation was considered valid, was it not? And
that interpretation seems rather different nor seemed to require they have a
specific license for what they were doing. Should it not be held to that
standard?
If Oracle can demonstrate they violated Sun's past licenses, that is different,
but to change them as it seems to me they have, and then apply the results ex
post facto, seems like a rather prejudicial re-invention of history, and too
much like how SCO tried to redefine pre-existing agreements and contracts, even
for those who for example reused code based on the result of the BSD settlement
but never were an actual party to it and did not believe they had any reason to
needed to acquire some license either, let alone completely unrelated code.
[ Reply to This | # ]
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Authored by: TiddlyPom on Thursday, December 02 2010 @ 07:46 AM EST |
As PJ says, this case is important because it is about a principle - namely
being able to use code in a way other than it was originally intended.
This is one of the primary advantages of the open source community - someone
looks at some existing code and then suddenly realizes that it could be used for
some new exciting purpose. Many projects have been started in this way and
Oracle wants to stop this happening (at least with respect to Java and software
they 'control') to reduce the threat to their proprietary software model from
competitors and/or from the open source community.
IMHO this is why they wanted Sun in the first place. They use Java extensively
within their own products and wanted everybody who uses Java to be forced to
follow their development path.
Open source software isn't like this. It need the freedom to utilize other open
source software in any way it wants to (as building blocks) in order to foster
imagination and progress. I think that this is what Richard Stallman wanted
when he first thought up the GPL license.
Dalvik is NOT Java - it is purely a virtual machine (of which there are plenty
and also plenty of prior art). The old BASIC interpreters on microcomputers in
the 1980's (like the Commodore PET and Tandy TRS-80) are a form of virtual
machine.
Google is not trying to do an 'end run' around Oracle. They are using a set of
existing building blocks to build an execution environment more suited to mobile
phone usage. Java ME is NOT a suitable environment for modern smart phones and
Google knew that.
The biggest shame is that Google used Java at all and not some other more open
source friendly language such as Python or Ruby. They used a Java development
environment since it meant they could reuse existing (open source) software
without having to spend millions of dollars developing something that already
existed.
Oracle is WORSE than Microsoft in my opinion. At least Microsoft try and get
everyone to use their own products - Oracle want to force everyone to use open
source software (which they do NOT own - it belongs to the community) in a
controlled restricted way - which is far worse.
---
Microsoft Software is expensive, bloated, bug-ridden and unnecessary.
Use Open Source Software instead.[ Reply to This | # ]
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Authored by: ggiedke on Thursday, December 02 2010 @ 07:56 AM EST |
Hello PJ,
thank you for the nice explanation of the Google-Oracle case. I'm wondering
about one point in the room-painting analogy, though:
It seems that it was Oracle who made the assurances (that the use Google made of
Java was ok) but Sun which wrote the contract (that forbids certain kinds of
usage).
So what do oracles statements mean - wouldn't mostly matter what *Sun* was
saying before its acquisition?
So in the analogy, shouldn't there be one more character, A, the owner of the
house who signed the contract (about painting with organic paint) with B, and C,
a pal of A and B, who said "just use any paint, that's fine with me" -
but on the other hand bought the house, including the organic-paint contract,
from A and realized only then, that the house had a higher resale value if
painted organically?
Many thanks for clarifications.
regards
Geza[ Reply to This | # ]
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Authored by: Anonymous on Thursday, December 02 2010 @ 09:42 AM EST |
In my opinion the unaccomplished promise to provide the ASF (and the whole
software industry) the TCK is a clear case of culpa in contrahendo.
The promise has been made in public in both the original Java-GPL announcement
from Sun and the JSPA license which Sun and also Oracle signed. This was one of
the reasons why large parts of the industry moved to Java and if Oracle now
breaks their promise, then this would be highly dolos.
LieGrue,
strub[ Reply to This | # ]
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Authored by: DannyB on Thursday, December 02 2010 @ 09:59 AM EST |
PJ writes:
Why use Java, I'm now asking? If this is how it is, why
step into such a cage? I confess, it's a great mystery to me why people use
proprietary code at all any more.
First the technical. Ignoring
(only momentarily) the license/philosophical issues, there are tremendous
technical reasons to use Java. Similarly for .NET also.
Once you
consider the license/philosophical issues, .NET becomes immediately
unacceptable. Microsoft's own past behavior indicates that it very well might
let people expend enormous resources to construct an open .NET implementation
and then sue to control or tax it for anticompetitive reasons. Microsoft has
attempted to cloud the issue that the C# language is open, but steadfastly
refuses to simply and clearly state that anyone can freely reimplement the
standard library API's -- which is where the real value of the ecosystem
lies.
As for Java, the code was under GPL. Sun gave every indication
it is really open source and you can use it in any way you like -- including not
getting sued over patents.
People argue to use other languages/tools.
Newsflash: those will not protect you from lawsuits of people seeking money.
SCO should have taught you this by now. SCO had no proof of infringement in
Linux, and no legitimate claim to Linux, yet tried to extort the entire world
for billions of dollars -- just for starters. The $5 Billion was just from
IBM. I'm sure they wanted much more. IIRC they later talked of 40-50 billion
damages from IBM accumulating as the clock kept ticking.
I'm not
turning this into a pro-java/anti-java argument. I also happen to like, for
instance, Python, and JavaScript. Very much. And some others.
That
said, people who argue against Java but have not learned from the SCO/Linux
story don't seem to realize the self contradiction they argue. Don't use this
free and open source GPL language Java because it is proprietary? Instead use a
free and open source language X. I'll use Python as an example because it
happens to be a favorite. Do you really think that by using Python you are now
magically safe from some CEO somewhere who envisions getting billions of dollars
by suing you?
This is all about money. Google is successful. Google
has money. People want Google's money. Some even think they are somehow
magically entitled to it. Just as Darl thought he was somehow rightfully
entitled to $5 Billion from IBM's hard work -- and more money from others
using Linux. If you use a "safe" FOSS GPL non-proprietary (or other license)
language/tools/etc, and you make big money (eg Google/Android/etc) I
guarantee you that parasites and leaches will come crawling out of the woodwork
to sue you thinking they have a God given right to your money from your hard
work.
End rant.
--- The price of freedom is eternal
litigation. [ Reply to This | # ]
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- Why use Java? - Authored by: Anonymous on Thursday, December 02 2010 @ 10:09 AM EST
- Why use Java? - Authored by: Anonymous on Thursday, December 02 2010 @ 10:27 AM EST
- Why use Java? - Authored by: Anonymous on Thursday, December 02 2010 @ 10:52 AM EST
- Why use Java? - Authored by: Ian Al on Thursday, December 02 2010 @ 01:21 PM EST
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Authored by: tiger99 on Thursday, December 02 2010 @ 10:46 AM EST |
There are many more of these statements than I remember in the SCO cases. Many
of these items relate to things which are common knowledge and easily
accessible. I conclude one of several options apply: - Oracle's lawyers
have not done their research
- Oracle's lawyers are lying
- Oracle's
lawyers are incompetent
- They want to generate delay, followed by a very
long trial where trivial and probably unimportant facts are debated at great
length
[ Reply to This | # ]
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Authored by: Anonymous on Thursday, December 02 2010 @ 10:57 AM EST |
Google should not have used Java.
After all, Linux is written in the C language.
One can write Android apps in C.
After purchasing the Android system, Google could have easily converted it into
C.
Then, there would not have been any lawsuit.[ Reply to This | # ]
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Authored by: Anonymous on Thursday, December 02 2010 @ 11:39 AM EST |
Google claimed in section A8 two things:
1) "Later that year, in December of 2007, during a JCP EC meeting, Oracle
Corp. proposed that the JCP should provide "a new, simplified IPR
[intellectual property rights] Policy that permits the broadest number of
implementations.""
2) "At that same meeting, BEA Systems which at the time was in negotiations
that resulted in Oracle Corp. purchasing BEA proposed a resolution that TCK
licenses would be "offered without field of use restrictions . . . enabling
the TCK to be used by organizations including Apache." Oracle Corp. voted
in favor of the resolution."
The Oracle response only includes an answer to the first. The second is much
more interesting and important (last para):
"Resolution 2 (proposed by BEA, seconded by Intel)
The SEEE EC requests Sun to submit a Java SE7 JSR with the following
characteristics:
* EG members will share costs by contributing to the TCK and RI submitted
under common licensing terms that will allow any implementer to use them;
* accompanied by public spec, tck, ri licenses at JSR initiation;
* licenses do not contain Field of Use restrictions on spec implementations.
* the JSR is operated by the Spec Lead under democratic principles (e.g. Java
SE6)
Furthermore, from the time of submission, TCK license(s) for Java SE5 and later
will be offered without field of use restrictions on spec implementations
enabling the TCK to be used by organizations including Apache."
Specifically, Oracle has effectively denied in its response that it voted Yes to
resolution 2! Despite this being a matter of public record
(http://jcp.org/aboutJava/communityprocess/summaries/2007/December07-summary.htm
l). And it goes right to the heart of the case - as that is where Oracle voted
Yes to the TCK for Apache.
Whether this was a mistake or deliberate is an interesting question.
Stephen Colebourne[ Reply to This | # ]
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Authored by: tknarr on Thursday, December 02 2010 @ 12:31 PM EST |
One thing I'd note about Google: it isn't a normal corporation. Normal
corporations are owned by the stockholders who have control through the board of
directors, and the company has to answer to them for it's performance. Google,
when it did it's IPO, arranged things so that the two founders had voting
control of the company. Unless things have changed drastically since then, if
Larry and Sergey are OK with a course of action then the rest of the
stockholders are out-voted. I don't even think the stockholders can successfully
sue, since a majority of stockholders approve the action. [ Reply to This | # ]
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Authored by: Anonymous on Thursday, December 02 2010 @ 12:40 PM EST |
My understanding of the suit is that it is not about using java, but having
a language and virtual machine that will take source code in the java language
and behave as an independent programmer would expect, based on his
experience
writing java code. I don't see it having any impact on the use
of jvms acquired
from Oracle or others who have licensed their virtual
machine
implementations
from Sun/Oracle.
But why use java? The answer could be complex, and
include the history
of languages and programming. The simple answer is it has a
great library, so
setting up and tearing down a network connection is
relatively simple. It
abstracts the operating system (it wasn't first to
implement this idea) which
meant as long as someone provided a compatible
virtual machine, the
bytecode generated by the java compiling process would
run.
I learned the language in 2000. In a few years, I was writing and
testing
on my (PowerPC) Mac java web application code which would be deployed
to
Linux servers running on then-obsolesced 700 MHz Intel machines. The client
machines were Windows and employees used browsers to access the services.
By
writing
in java, I could have put the database on Linux and the web
applications
server on the Mac or a Windows machine. (Though, Windows had a
desktop
restriction for the number of incoming networked connections. *nix
computers are fine at being desktops and servers simultaneously.)
Java
is very much the right tool, though not the only tool, for creating
quick
networked applications that have to be platform
agnostic. Computer
languages are also like natural languages in
these regards: they have idioms
and it takes usage (and bad poems) to be a
poet. Computer programs are like
architectural drawing sets in that they
contain details which are reusable. A
good programmer builds her library of
details which handle the problems she's
seen before allowing her to quickly
move to the new issues of a particular
project. Using a new language means
that library has to be ported or replicated
within the new language's particular
idiom. Frankly, java in 1996-2000
was the language
that solved far more problems than it added (mainly
slowness and size which
killed it for its first use case, programs distributed
from web sites.) Quickly,
libraries were added which improved it, somewhat, as
a desktop application
environment, and improved it a lot as a language to
implement the server
side of the client-server application model. The uptake
was large and rapid.
At some point, and this is true of COBOL, the economics of
rewriting
disappear and we use java because we have used java. It's not a bad
baseline. As to the proprietary issue, all development and
distribution
models and licenses have their blind sides and cost/benefit
points. Programming
languages are abstractions and, to paraphrase, the devil
is in the
implementation on the hardware. Optimization is a costly process
and, while one
of many, the profit motive does drive a significant portion of
that work. A
language and compiler combination that results in smaller,
quicker code is the
proverbial better mouse trap. As for guys like
me, when
solving a
problem, we look at the solution constraints and go with the best
option in
terms of performance and cost of development. For some people,
that means they
buy a license to Allegro Common Lisp. Me? I have to
work cheap, so I take the
cost-free alternatives and I've done some good
work with GNU clisp. Of course,
I honor their license terms. [ Reply to This | # ]
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Authored by: Anonymous on Thursday, December 02 2010 @ 02:19 PM EST |
Google can't challenge the validity of the patents because the inventors might
work for Google *in the future*?!?
The logical conclusion of that argument is that the validity of a patent may
only be challenged once the inventor is dead.
MSS2[ Reply to This | # ]
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Authored by: Anonymous on Thursday, December 02 2010 @ 02:27 PM EST |
"10. Answering Paragraph 6, Oracle admits that Sun published its
copyrighted Java specifications and offered licenses to them under certain
conditions. For example, in the case of the Java 2 Platform, Standard Edition,
Sun permitted developers to create “clean room” implementations of Sun’s Java
specifications provided that they comply with all applicable license
requirements..."
Why do I need a license to be able to create a clean room implementation of a
specification? To be able to use some patents? OK. To have the right to call
it "Java"? OK. To have the right to implement a clean-room version
of a published specification? You've got to be kidding - unless Google had to
sign a contract in order to be allowed to view the specification.
I'm still not getting what Oracle thinks the real issue here is...
MSS2[ Reply to This | # ]
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Authored by: jbb on Thursday, December 02 2010 @ 03:20 PM EST |
I posted this before regarding the newspick article:
Oracle Responds to Apache Java
Defiance
Apache references the
JSPA (pdf,
the,
Java Specification Participation Agreement). They say the Field of Use
(FOU)
restriction added to the process to certify a Java implementation (called
the
TCK) violates the terms of the JSPA.
I'm biased by I have to fully
agree
with Apache here. The JSPA defines TCK
as:
Technology
Compatibility Kit (TCK): the suite of tests, tools,
and documentation that
allows an implementor of a Specification to
determine if their
implementation is compliant with that
Specification.
ISTM
this is very straightforward. It is
supposed to be a set of tests that see if
an implementation is technically
compatible with a specification. The key part
comes a little later where the
JSPA says that anyone can create an independent
implementation and get a royalty
free irrevocable license to copyrights and
patents used in the specification if
they jump these three technical
hurdles:
(a) fully implement the
Spec(s) including all its required
interfaces and functionality;
(b) do not
modify, subset, superset or
otherwise extend the Licensor Name Space, or
include
any public or protected
packages, classes, Java interfaces, fields or
methods within the
Licensor
Name Space other than those required/authorized by
the Spec or Specs
being implemented; and
(c) pass the TCK for
such
Spec.
Apache's complaint is that Oracle added an additional
"Field
of Use" restriction (basically nullifying the license if the compliant
software
is used on mobile phones) by slipping this addition restriction into
the TCK.
The relevant parts of the JSPA clearly show that you only need
your
implementation to pass certain technical tests in order to get
the
license. If Oracle/Sun had wanted to add additional non-technical
restriction
(such as the Field of Use restriction) then they should have added
them
explicitly in the JSPA as items (d) on the list I above. Or they could
changed
the wording of the terms of the license that would be granted to include
the
restriction. Slipping it into the technical test to see of the software
meets
the spec is just dirty pool.
For goodness sake, by Oracle's logic,
they
could have added a restriction to the TCK that you had to walk on the
planet
Mars in order to get the license which, of course, would totally nullify
the
JSPA. Apache's Harmony passed all the technical hurdles as specified in
the
JSPA but Oracle is refusing to give them a license because Harmony is
Open
Source and therefore can't be banned for use on any platform.
Of
course, if
Oracle didn't play this nasty trick then they might have a much
harder time
suing Google over Android. Maybe someone can sue Oracle for such a
blatant
violation of both the spirit and the letter of the JSPA.
--- [
] Obey DRM Restrictions
[X] Ignore DRM Restrictions [ Reply to This | # ]
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- The JSPA - Authored by: webster on Thursday, December 02 2010 @ 03:31 PM EST
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Authored by: celtic_hackr on Thursday, December 02 2010 @ 05:53 PM EST |
Don't you all just love PJ?
She's so great at this stuff!
Plus we actually agree on something. Well we agree on lots of stuff. But my
first reading of the patents were they didn't relate to a particular machine.
Nice to have PJ agree with that. Makes me feel better at being able to read that
crazy legalese, fry your brain cells, patent junk.[ Reply to This | # ]
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Authored by: Anonymous on Thursday, December 02 2010 @ 07:14 PM EST |
Here are all the hoops you have to jump through as Oracle describes
them in its filing, and in doing so, it is laying out what its beef is with
Google:
10. Answering Paragraph 6...provided that they comply
with all applicable license requirements, including requirements that they (i)
include a complete implementation...[requirements (ii) through (vi)...Oracle
lacks sufficient knowledge or information to admit or deny the remainder of the
allegations of Paragraph 6, and, on that basis, denies them.
So
that's what this is all about, right there in that paragraph. It bothers me that
Oracle didn't tell all that earlier, waiting to spell it out in its Reply,
meaning Google doesn't get to respond, but there were other motions that maybe
interfered. I'll give them the benefit of the doubt.
Is it even
necessary to give them the benefit of the doubt? It looks like Oracle was just
quoting the requirements in the license that Google cited in that paragraph.
This is what Oracle was responding to:Upon information and belief,
Sun also released the specifications for Sun's Java platform...under a
free-of-charge license that can be found at
http://java.sun.com/docs/books/jls/third_edition/html/jcopyright.html...
From that webpage:This license allows and is limited to
the creation and distribution of clean room implementations of this
specification that: (i) include a complete implementation of the current version
of this specification without subsetting or supersetting; (ii) implement all the
interfaces and functionality of the required packages of the Java 2 Platform,
Standard Edition, as defined by SUN, without subsetting or supersetting; (iii)
do not add any additional packages, classes, or interfaces to the java.* or
javax.* packages or their subpackages; (iv) pass all test suites relating to the
most recent published version of the specification of the Java 2 Platform,
Standard Edition, that are available from SUN six (6) months prior to any beta
release of the clean room implementation or upgrade thereto; (v) do not derive
from SUN source code or binary materials; and (vi) do not include any SUN source
code or binary materials without an appropriate and separate license from
SUN. It bothers me that the didn't confirm that the URL was the
correct one for the license, though.
Note: they also provided the URL
for the second edition license (I didn't check it) and I didn't check item by
item. I may have grabbed the wrong one. There could be something that doesn't
match either one. I don't have the time to check further.[ Reply to This | # ]
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Authored by: Anonymous on Thursday, December 02 2010 @ 07:26 PM EST |
PJ says:
"[F]rankly the first thing I noticed with the patents was that they didn't
seem to be tied to a specific machine, so depending on how the US Supreme Court
defines its terms after Bilski...".
In the Bilski decision the Supreme Court dwelled at length on the definition of
terms w.r.t. patent statutes:
"In patent law, as in all statutory construction, “[u]nless otherwise
defined, ‘words will be interpreted as taking their ordinary, con-temporary,
common meaning’”.
Consider Sun's patent #5,966,702 claim:
"7. A computer program product comprising:
a computer usable medium having computer readable program code embodied therein
for pre-processing class files, said computer program product comprising:
computer readable program code configured to cause a computer to determine a
plurality of duplicated elements in a plurality of class files; computer
readable program code configured to cause a computer to form a shared table
comprising said plurality of duplicated elements;
computer readable program code configured to cause a computer to remove said
duplicated elements from said plurality of class files to obtain a plurality of
reduced class files; and computer readable program code configured to cause a
computer to form a multi-class file comprising said plurality of reduced class
files and said shared table."
We see a "... computer program product..." "... configured to
cause a computer...". So, where is a "particular" apparatus?
From dictionary.com:
"paticular 1. of or pertaining to a single or specific person, thing,
group, class, occasion, etc., rather than to others or all; special rather than
general: one's particular interests in books."
See the "... special rather than general..." as NOT in a "general
purpose computer"?
From merriam-webster.com:
"particular 1. of, relating to, or being a single person or thing <the
particular person I had in mind>"
I believe Google is on the right track in claiming that the patents are not tied
to a "particular apparatus".
[ Reply to This | # ]
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Authored by: bbaston on Thursday, December 02 2010 @ 08:44 PM EST |
Completely on-topic: here ---
IMBW, IANAL2, ICRN, IAVO
imaybewrong, iamnotalawyertoo, icantremembernow, iamveryold [ Reply to This | # ]
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Authored by: eschasi on Thursday, December 02 2010 @ 10:19 PM EST |
OK, I'm confused. Oracle writes in their paragraph 10:Answering
Paragraph 6, Oracle admits that Sun published its copyrighted Java
specifications and offered licenses to them under certain conditions. For
example, in the case of the Java 2 Platform, Standard Edition, Sun permitted
developers to create “clean room” implementations of Sun’s Java specifications
provided that they comply with all applicable license requirements, including
requirements that they [[six specific requirements elided]]. Google is not in
compliance with these license conditions.... That's my emphasis on
the italicized part.
My layman's reading of this is that Oracle has given an
example of a license, but does not state that this is the license that's been
violated. Further, they list six specific points, some with sub-points, but do
not state which if any were actually violated. Even if the "For example" part is
just sloppy phrasing, I still don't see any specificity here.[ Reply to This | # ]
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Authored by: celtic_hackr on Friday, December 03 2010 @ 10:37 AM EST |
Please see the next post on a total trashing of this patent and the abundance of
prior art.[ Reply to This | # ]
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Authored by: tanner andrews on Friday, December 03 2010 @ 02:49 PM EST |
starts again with paragraph number 1 in its section on defenses,
and then come the counterclaims, with yet another beginning at number
1
The other common method is to simply continue. If the
complaint contains 1..47, then your affirmative defenses could run 48..56, and
the counterclaim could start at 57.
I do not like that as well, myself,
because I find it easier to deal with things that are better sectioned. The
answers to the complaint will indeed be 1..N. My affirmative defenses usually
start at 101. If there is a counterclaim, it will likely start at
201.
This avoids the ambiguity of having two paragraphs both numbered
3, and it makes it clearer in later discussions what sort of paragraph is under
consideration. I would urge others to consider such a practice.
You
may want to start at 1001 and 2001 if your complaint really does run over 100
paragraphs.
--- I am not your lawyer; please ignore above message.
[ Reply to This | # ]
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Authored by: Yossarian on Friday, December 03 2010 @ 08:12 PM EST |
I tend to agree.
Next question is:
"What can prevent Novell's new owner from doing the same
with Novell's patents?[ Reply to This | # ]
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Authored by: celtic_hackr on Friday, December 03 2010 @ 08:32 PM EST |
Sun came under significant criticism from members of the open source
community, including Oracle Corp., for its refusal to fully open source Java.
For example, in August of 2006, the Apache Software Foundation ("ASF"), a
not-for-profit corporation that provides organizational, legal, and financial
support for open source software projects, attempted to obtain a TCK from Sun to
verify Apache Harmony's compatibility with Java. Although Sun eventually offered
to open source the TCK for Java SE, Sun included field of use ("FOU")
restrictions that limited the circumstances under which Apache Harmony users
could use the software that the ASF created, such as preventing the TCK from
being executed on mobile devices. In April of 2007, the ASF wrote an open letter
to Sun asking for either a TCK license without FOU restrictions, or an
explanation as to why Sun was "protect[ing] portions of Sun's commercial Java
business at the expense of ASF's open software" and violating "Sun's public
promise that any Sun-led specification [such as Java] would be fully
implementable and distributable as open source/free software." However, Sun
continued to refuse the ASF's requests.
Answering
Paragraph 7, Oracle admits that the Apache Software Foundation (“Apache”)
requested a TCK to verify Apache Harmony’s compatibility with Java in August
2006 and that Sun included field of use restrictions in the TCK license. Oracle
admits that Apache wrote an open letter in April 2007 requesting a TCK license
without field of use restrictions, and that Sun declined to withdraw the field
of use restrictions. Oracle denies any remaining allegations of Paragraph
7.
Oracle is here denying they criticized Sun for refusing to
fully open source Java? Can they really deny something where there is historical
evidence they did in fact criticize Sun for exactly this? Isn't that perjury?
Aren't the lawyers somewhat supposed to verify things that are provable once
they know about it? I realize the object is to deny everything, but surely not
out right lying.[ Reply to This | # ]
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