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Google asks Patent Office for second opinion on Oracle’s Android claims

Feb 17, 2011 — by LinuxDevices Staff — from the LinuxDevices Archive — views

Hoping to fend off Oracle's lawsuit claiming Android patent infringement for certain Java patents, Google has asked the U.S. Patent and Trademark Office (USPTO) to reexamine four of them. Meanwhile, an open source expert suggests that because Google is a relative weakling in the patent game, lacking few patents of its own, it will be tough to settle with Oracle.

According to a Feb. 16 post on the Westerman Hattori Daniels & Adrian (WHDA) law firm's blog, Google requested ex parte reexamination of four Oracle America patents — U.S. Patent Nos. 5,966,702, 6,061,520, 6,125,447 & RE 38,104 — related to the "Java platform."

In August 2010, Oracle sued Google for infringing seven of its Java patents and a series of copyrights related to the Google sponsored Android operating system. Oracle asserts that Android, including the Dalvik virtual machine and the Android software development kit (SDK), infringe Oracle's Java patents.

Although Google only requested reexamination of the four patents listed, the company could later request reexamination of the remaining three. Under the reexamination process, a party can have a patent reexamined by a patent examiner to verify that the subject matter it claims is patentable. To have a patent reexamined, an interested party must submit prior art that raises a substantial new question of patentability.

"Google might also request that the trial judge, Judge William H. Alsup, to stay the case pending completion of the reexamination proceedings," writes Scott Daniels, a partner with the WHDA intellectual property law firm. "But such a stay might not be granted since Google and Oracle America are direct competitors and since reexamination could not resolve the copyright allegations."

Is Google a patent weakling?

Google is clearly looking to the USPTO to give the company some wiggle room in the lawsuit. Yet, Florian Mueller, an intellectual property activist and free and open source software supporter, argues that Google is by itself too weak to protect Android from lawsuits.

In a blog post entitled "Google is patently too weak to protect Android", Mueller cites the number of patents held by major IT companies, and indicates that with only 576 patents, Google is not in a position of strength against competitors.

"While Google has ramped up its patenting activity in recent years, the gap in portfolio strength between the Android developer and its mobile operating system competitors actually appears to be widening," writes Mueller.

In 2010, IBM continued its streak of claiming the top spot with the most patents awarded to any company by the USPTO, with 5,896 patents. Samsung came in second with 4,551 patents, and Microsoft was third with 3,094 patents. Rounding out the top 10, Intel was eight with 1,653 patents, and HP was 10th with 1,480 patents.

Meanwhile, Mueller called Apple a "rising star," as it gained 563 new patents in 2010 and ranked 46th. Oracle America, formerly Sun Microsystems, ranked 43rd with 646 patents.

In the mobile space, "The operating system that is the target of more infringement action than any other is Google's Android," Mueller writes. Worse yet for Google, Mueller suggests the search giant cannot solve Android's problems through cross-licensing, which he says is how most patent disputes between large companies are resolved.

"In most cases, one company will have the upper hand and make a payment to compensate for the difference in portfolio value," writes Mueller, regarding cross-licensing negotiations. "Still, such payments tend to be much lower than the cost incurred by a 'have-not' who needs a license from a powerhouse. In a price-sensitive, highly competitive market such as smartphones, the cost of patent licensing is eminently important."

Other Dalvik developments

Last week, an "IcedRobot" project was announced by third party developers that aims to develop a version of Android that will be beyond the reach of Oracle's lawsuit against Google regarding use of the Dalvik Virtual Machine. By adopting the OpenJDK implementation of Java, the project will further separate Dalvik from Android and create an Android variant that will be suitable for running on desktop PCs.

Dalvik also made the news last week when Myriad Group AG announced a Dalvik virtual machine claimed to let Android apps run on non-Android platforms. Myriad posted a video demo showing its Myriad Alien Dalvik running Android apps on a Nokia N900 side by side with an Android-based HTC Legend phone, revealing similar performance. The company says the software will be available for MeeGo later this year.

Darryl Taft is a writer for our sister publication eWEEK.

This article was originally published on and has been donated to the open source community by QuinStreet Inc. Please visit for up-to-date news and articles about Linux and open source.

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