Major damages sought in Oracle-Google patent dispute

Rewrite of Android virtual machine, affecting thousand of developers, also at stake

A new document in a year-old patent lawsuit filed by Oracle against Google over Android intellectual property suggests Oracle could be seeking huge damages from Google.

The damages owed to Oracle, if granted by federal Judge William Alsup for the U.S. District Court for Northern California, would "far exceed any money Google has ever earned with Android" and could lead to a rewrite of Android's Dalvik virtual machine, considered integral to Android and used by Android device manufacturers and potentially thousands of Android app developers, wrote one blogger, Florian Mueller , who writes about intellectual property issues involving the software industry.

The actual damages Oracle is demanding are unclear, since many portions of the latest five-page document are blacked out of view in the publicly available version filed Monday in federal court.

Oracle sued Google last August , claiming the Android operating system violates Java patents and copyrights that Oracle inherited when it bought Sun Microsystems. Google denies the charges and claims the case is an attack on open source.

Google's attorney, Scott Weingaertner, of the law firm King & Spaulding in New York, filed the document in response to an expert's opinion on damages in the case entered earlier by Iain Cockburn on behalf of Oracle. Cockburn, a professor of economics at the Boston University School of Management, has provided expert testimony in other patent cases where the valuation of intellectual property is at issue. His damages report has not been made public, and Google's response is the first indication of what it says.

Experts who testify in lawsuits are usually discredited by the opposing counsel, and Cockburn is no exception. Google's attorney said Cockburn made legal errors that are "fundamental and disqualifying," adding that allowing him to testify to a jury would "prejudice Google."

Weingaertner also said that Cockburn is at fault for seeming to contend that advertising revenue Google receives from mobile searches on Android devices should be subject to royalties owed to Oracle for its patents on Java technology that Oracle argues are being used in Android.

Google notes that it does not receive any payment or fee for Android, which is widely considered open source software.

Google's attorney further states that Cockburn found that an "unprecedented" 50% royalty rate was owed to Oracle, and that Cockburn failed to tie that rate to the patented technology at issue in the case.

Weingaertner also states that Cockburn calculated Oracle's loss due to Google's alleged patent infringement based on all Java software, "even though the patented features are only a small part of Java."

Neither Google nor Oracle responded to a request for comment on the case.

Mueller, who calls himself an "activist" blogger, blasted Google for separating Android as an operating system from Google's revenues for Android-based advertising. "On this item, I agree 100% with Oracle and 0% with Google," Mueller wrote. "No matter how much I dislike Oracle's software patents I can't support Google's position on this royalty base issue." He added that Google's representations "defy logic and deny reality."

Mueller said Google chose to make Android available to developers and others without a royality "but doesn't do this for charity. There's a clear business model, and its most essential part [is] advertising revenues related to search and other online services."

Mueller also noted that Cockburn's valuation of a 50% royalty rate could be tripled under the U.S. legal code if Google's alleged patent infringement is found to be willful.

Taking those factors into consideration and the 44 current Android-related patent infringement lawsuits already filed in U.S. courts, Mueller noted that the "Android ecosystem stands on allegedly thin ice."

Mueller noted that Oracle must be holding out for generous damages from Google because that case hasn't settled out of court, as do 95% of such cases. A trial could be held in five months.

"The two companies are not just miles but light years apart, and it could very well be that a defeat in court would require Google to make fundamental changes to its Dalvik virtual machine -- changes that would likely affect many if not all existing Dalvik-based (.DEX) applications," Mueller concluded. "But even in purely financial terms, there's serious doubt as to whether Google would be able to meet Oracle's requirements while continuing to make Android available without charge a per-copy license fee. This lawsuit has the potential to bring about a restructuring of Google's Android business in economic as well as technical terms."

Matt Hamblen covers mobile and wireless, smartphones and other handhelds, and wireless networking for Computerworld. Follow Matt on Twitter at @matthamblen or subscribe to Matt's RSS feed . His e-mail address is mhamblen@computerworld.com .

Read more about mobile oses in Computerworld's Mobile OSes Topic Center.

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