I read the judges statements as a not-too-subtle warning to Google -- settle this, do not let it go to trial.
The judge apparently knows theft (wilfull infringement) when he sees it.
The judge is absolutely saying to Google that it faces an uphill struggle at trial if the email draft stays in the record. Google may yet prevail in its attempt to claim privilege, though I doubt it.
Even if it doesn't there are still lots of ways that it can go wrong for Oracle. Suppose Google is found to infringe, the judgement will have to specify exactly which claims of the patents that it infringes. If all of those claims are invalidated then Google is home free - wilful infringement or otherwise. If some are invalidated and the others are reworded then Google gets to play again, the whole mess goes back to trial because the rewording is retroactive. Then there's the estoppel argument due to the SUN java executive's blog posting.
Oracle ideally needs Google to be found to be wilfully infringing a claim that survives USPTO examination intact and cannot be engineered around, preferably a claim on the '720 patent since it has the longest to run.
If Google is found guilty of wilfully infringing Oracle's patents and proceeding to market this [Android] to 3rd-parties: manufacturers, carriers, resellers, developers, accessory makers, consumers, etc...
Is Google subject to recourse, regardless of the terms of the Android license.
Has Google committed fraud?
That's a good question, but I think not. Perhaps if Google made statements to these companies swearing that it wasn't patent encumbered, and it turned out to be. But I think they could just be sued. As with everything, proof has to be provided, and unless Google gave sworn, written statements about this, it would be hard to prove it.
My wife, who is a lawyer, and has had a lot of experience in this area said that these companies can ask Google to indemnify them against lawsuits and license fees. But we know that MS has been exacting heavy tolls from five manufacturers of of Android phones, and are now after Samsung. So I would say that likely they can't do much against Google at this time, at least.
'The seven Java-related patents Oracle asserts are being reexamined by the U.S. Patent and Trademark Office at Google's request, and in five of those reexaminations, "first Office actions" have been issued.'
All seven patents were submitted for reexamination, and so far we have some results for five. How does it stand?
These are all preliminary actions of course, but please tell me which patents you believe Oracle has asserted that are under absolutely no suspicion of invalidity?
Those are not the patents in question here. You should read the article from him that I posted earlier. He wrote that yesterday. Just a bit more recent than the others, yes?
No, there would need to be a legal precedent. If you can find one where a licensee sued successfully I'd love to hear about it. But I don't think you will because as far as I am aware it is impossible.
No there doesn't. A legal precedent is just a decision from an earlier case. How do you think that precedent was made? How could THAT case have come to court if a precedent was needed for it to get there? That not logical. Anyone can sue anyone. If the suit is considered to be a nuisance suit, it will be thrown out by the court. But if it's not, it will go through. Maybe it will even set a precedent.
Quote:
Lots of things are immoral but not criminal. Lots of things are criminal but not immoral. I've never said otherwise, though you keep claiming I have. I have only said that I believe that this particular act isn't immoral and that it absolutely isn't theft.
Those are not the patents in question here. You should read the article from him that I posted earlier. He wrote that yesterday. Just a bit more recent than the others, yes?
Yes they are. I had already read the post you linked, if you reread it you'll note that he doesn't mention any new patents. He's talking about the discovery phase of the existing trial, which is based on some subset of the hundred odd claims in those seven patents.
Oracle ideally needs Google to be found to be wilfully infringing a claim that survives USPTO examination intact and cannot be engineered around, preferably a claim on the '720 patent since it has the longest to run.
I'm not so sure Oracle cares if Google can engineer around them or not. Sure, it would affect future money through continued licensing, but it doesn't absolve for any past infringement. Oracle wanted $6 billion and Google wanted $0 in damages. That's a whole of wiggle room and if Google is found to have infringed willfully then Oracle could get triple damages. If you split the difference of each company's claim of damages, that's $3 billion meaning could be on the hook for $10 billion. That's a lot of dough.
No there doesn't. A legal precedent is just a decision from an earlier case. How do you think that precedent was made? How could THAT case have come to court if a precedent was needed for it to get there? That not logical. Anyone can sue anyone. If the suit is considered to be a nuisance suit, it will be thrown out by the court. But if it's not, it will go through. Maybe it will even set a precedent.
Ok, you would still need a related precedent or a piece of legislation, or a constitutional principle. Judges don't make up law out of nothing at all. In this case there is no direct precedent and no way to see what case you could even make. If you pay the license fee you have no recourse upon invalidation, because all the license actually promises you is that the licensor won't sue you, and that any future assignees won't either - it doesn't even promise you that you are safe to use the patent!
I'm not so sure Oracle cares if Google can engineer around them or not. Sure, it would affect future money through continued licensing, but it doesn't absolve for any past infringement. Oracle wanted $6 billion and Google wanted $0 in damages. That's a whole of wiggle room and if Google is found to have infringed willfully then Oracle could get triple damages. If you split the difference of each company's claim of damages, that's $3 billion meaning could be on the hook for $10 billion. That's a lot of dough.
So far the judge has proven unconvinced by Oracle's damages claim.
Pretty much, as the judge presiding the case said so. Really, Oracle's lawyers need nothing more than these emails to win a huge settlement from a jury. The Google engineer claiming that all other languages "suck" and recommending licensing Java will tell a jury that Google was simply being stingy/arrogant/above the law.
Yup - now this article may be a little overly optimistic, but it lead me to believe that it's a matter between the Judget and Oracle about exactly how much "damages" Oracle can claim. With these emails not being excluded, I don't see how Oracle can't get a "willful infringement" determination which would triple whatever amount Oracle get's the court to agree to.
Also winning a rejection of Google's claim that advertising revenue shouldn't be considered is huge - the judge apparently saw through the whole "but Android is free so there are no damages" defense that Google was attempting. If they were successful in that and if I were a shareholder in Google I would be looking for class action status for Google pissing away millions of dollars in giving away Android for no benefit.
Of course that isn't going to happen because Google does benefit monetarily which is no doubt why the judge rejected their lame argument.
So much for the gloom and doom against an Oracle award for the last several weeks!
Quote:
The only hope Google has is that the document can be rescinded (they are claiming attorney-client privilege), but that is not very likely.
According to the article they already tried that argument and it was rejected - hence it being published in this story!
I'd say "boned" is a good description of Google at this point. It's just a matter of how boned they are at this point. It won't be enough to sink them as a company, but if Oracle is indeed successful, Android looses it's single greatest advantage - "free"!
Ironically, this could be the best thing for Android. If Google is forced to charge to cover licensing, that means that they won't be able to just lounge around on the "free" thing - they will actually have to polish the platform up and make it more attractive and competitive. I think loosing to Oracle could be the best thing ever for Android being a platform that can compare to iOS or WebOS from a polish and usability standpoint. Right now - and web usage vs. units "sold" bears this out - only the geekiest of the geeky are using Android as a smartphone.
I've been following the tech industry for years and Google is by far the most cynical, dickish company the industry has seen. Their whole business model is to use their ad revenue to acquire, copy or steal technology to enter other markets and destroy value. They're worse than Microsoft at its most belligerent. If there was ever a time when Google were the good guys, it was a long time ago, back when they were still operating out of a garage and didn't have any revenue.
That more people either don't see this or choose not to see this truth is what's really disappointing \
Yes they are. I had already read the post you linked, if you reread it you'll note that he doesn't mention any new patents. He's talking about the discovery phase of the existing trial, which is based on some subset of the hundred odd claims in those seven patents.
You may have noticed how many times the judge told Google they would lose? It seems a forgone conclusion. And if the lindholm memo is admitted, their whole empire cow,d collapse.
Android's free ride will certainly come to an end next year. but an extra $50 license cost per phone is not going to make that big a difference in the market.
From your lips to consumers ears.
Somehow I think they will be deaf to you.
If I am looking at similarly price iOS phone, WebOS, WP7 or Android - Android is going to loose every time.
Android's ONLY advantage right now is that extra $50 per phone that the carriers (remember who the real customer for every other phone manufacturer is! Apple is still alone in their end user focus!) get to pocket. Remove that and why should they push them? Esp. if Microsoft or HP start kicking some of that back to the carriers (Which I wouldn't be surprised if they do)?
About 50% of all Windows Mobile devices were touchscreen-only but Daniel has decided to put none in his graphic.
"touchscreen" WIndows Mobile devices substituted your finger for a stylus - poorly too, I might add.
They don't resemble multi-touch as implemented in the iPhone, then Android, then WebOS and finally Windows Phone 7 in the least.
Simply chucking the stylus for one's finger hardly makes Windows Mobile devices "touchscreen" in the same way as the current generation of touchscreen phones.
Quote:
It's a very poor representation of the market before 2007.
No it's not when you compare equivalent functionality.
If anything he did Microsoft a favor by not citing the incredibly hideous and poor-selling Windows Mobile phones you are seemingly so enamored with!
Is infringing a patent really evil? If so good luck finding a software developer who isn't evil...
There's quite a difference between accidentally infringing and willfully infringing.
Why do you think the law recognizes this with the treble damages? And why do you think it looks like a forgone conclusion with these emails that Google will be paying triple of whatever Oracle gets the court to agree to for damages?
Please correct me if I'm wrong, but from what I have read, most of the copyrights were expired or untraceable and as far as I heard no actual authors were screwed over, just a few people who happened to technically own the rights to books that they did not write or have anything to do with for the most part.
Your wrong. They steamrolled over current, legitimate "in the spirit of which Copyright was founded" rights holders - and when confronted pretty much told the holders to pound sand.
You might want to look at post 27 for an example of someone who had a "real" copyright as opposed to your "less valuable" copyright
The fact is there are a ton of Google apologists out there who love sticking up for them because Google tosses out tons of free crap. They only take a piece of your soul in the form of some personal information to sell it to the highest advertiser bidder - but hey, according to Eric Schmidt privacy is dead anyway and we should just get over it.
Wait - isn't he a previous CEO of google and current board member? Isn't there a conflict of interest in that proclamation?
You may have noticed how many times the judge told Google they would lose? It seems a forgone conclusion. And if the lindholm memo is admitted, their whole empire cow,d collapse.
Yes but it is still all contingent on the patents themselves. The judge is talking about the patents as they currently stand, surely you can see that? Naturally the judge in this case pays no attention to the invalidation process as it's not part of his purview, but that doesn't mean that it doesn't exist.
In other words... I don't give a rat's ass what anyone else believes about the definition of evil... it was Google that set the terms... "measured against the highest possible standards of ethical business conduct". Therefore, on Google's terms, anything outside of that can be considered evil.
... and this is about Google... not Apple, not Microsoft, not IBM or anyone else.... it was Google who said, "Don't be evil".
/golf clap
I think the blatant hypocrisy is what is so grating to many of us...
Comments
The judge apparently knows theft (wilfull infringement) when he sees it.
I read the judges statements as a not-too-subtle warning to Google -- settle this, do not let it go to trial.
The judge apparently knows theft (wilfull infringement) when he sees it.
The judge is absolutely saying to Google that it faces an uphill struggle at trial if the email draft stays in the record. Google may yet prevail in its attempt to claim privilege, though I doubt it.
Even if it doesn't there are still lots of ways that it can go wrong for Oracle. Suppose Google is found to infringe, the judgement will have to specify exactly which claims of the patents that it infringes. If all of those claims are invalidated then Google is home free - wilful infringement or otherwise. If some are invalidated and the others are reworded then Google gets to play again, the whole mess goes back to trial because the rewording is retroactive. Then there's the estoppel argument due to the SUN java executive's blog posting.
Oracle ideally needs Google to be found to be wilfully infringing a claim that survives USPTO examination intact and cannot be engineered around, preferably a claim on the '720 patent since it has the longest to run.
Something I have been wondering about.
If Google is found guilty of wilfully infringing Oracle's patents and proceeding to market this [Android] to 3rd-parties: manufacturers, carriers, resellers, developers, accessory makers, consumers, etc...
Is Google subject to recourse, regardless of the terms of the Android license.
Has Google committed fraud?
That's a good question, but I think not. Perhaps if Google made statements to these companies swearing that it wasn't patent encumbered, and it turned out to be. But I think they could just be sued. As with everything, proof has to be provided, and unless Google gave sworn, written statements about this, it would be hard to prove it.
My wife, who is a lawyer, and has had a lot of experience in this area said that these companies can ask Google to indemnify them against lawsuits and license fees. But we know that MS has been exacting heavy tolls from five manufacturers of of Android phones, and are now after Samsung. So I would say that likely they can't do much against Google at this time, at least.
From fosspatents http://fosspatents.blogspot.com/2011...va-patent.html
'The seven Java-related patents Oracle asserts are being reexamined by the U.S. Patent and Trademark Office at Google's request, and in five of those reexaminations, "first Office actions" have been issued.'
All seven patents were submitted for reexamination, and so far we have some results for five. How does it stand?
Well one got completely invalidated http://fosspatents.blogspot.com/2011...acle-java.html
of the other four, almost all the claims that have been reported on have been invalidated
http://fosspatents.blogspot.com/2011...e-patents.html
These are all preliminary actions of course, but please tell me which patents you believe Oracle has asserted that are under absolutely no suspicion of invalidity?
Those are not the patents in question here. You should read the article from him that I posted earlier. He wrote that yesterday. Just a bit more recent than the others, yes?
No, there would need to be a legal precedent. If you can find one where a licensee sued successfully I'd love to hear about it. But I don't think you will because as far as I am aware it is impossible.
No there doesn't. A legal precedent is just a decision from an earlier case. How do you think that precedent was made? How could THAT case have come to court if a precedent was needed for it to get there? That not logical. Anyone can sue anyone. If the suit is considered to be a nuisance suit, it will be thrown out by the court. But if it's not, it will go through. Maybe it will even set a precedent.
Lots of things are immoral but not criminal. Lots of things are criminal but not immoral. I've never said otherwise, though you keep claiming I have. I have only said that I believe that this particular act isn't immoral and that it absolutely isn't theft.
Hey! We're coming closer!
Those are not the patents in question here. You should read the article from him that I posted earlier. He wrote that yesterday. Just a bit more recent than the others, yes?
Yes they are. I had already read the post you linked, if you reread it you'll note that he doesn't mention any new patents. He's talking about the discovery phase of the existing trial, which is based on some subset of the hundred odd claims in those seven patents.
Oracle ideally needs Google to be found to be wilfully infringing a claim that survives USPTO examination intact and cannot be engineered around, preferably a claim on the '720 patent since it has the longest to run.
I'm not so sure Oracle cares if Google can engineer around them or not. Sure, it would affect future money through continued licensing, but it doesn't absolve for any past infringement. Oracle wanted $6 billion and Google wanted $0 in damages. That's a whole of wiggle room and if Google is found to have infringed willfully then Oracle could get triple damages. If you split the difference of each company's claim of damages, that's $3 billion meaning could be on the hook for $10 billion. That's a lot of dough.
No there doesn't. A legal precedent is just a decision from an earlier case. How do you think that precedent was made? How could THAT case have come to court if a precedent was needed for it to get there? That not logical. Anyone can sue anyone. If the suit is considered to be a nuisance suit, it will be thrown out by the court. But if it's not, it will go through. Maybe it will even set a precedent.
Ok, you would still need a related precedent or a piece of legislation, or a constitutional principle. Judges don't make up law out of nothing at all. In this case there is no direct precedent and no way to see what case you could even make. If you pay the license fee you have no recourse upon invalidation, because all the license actually promises you is that the licensor won't sue you, and that any future assignees won't either - it doesn't even promise you that you are safe to use the patent!
I'm not so sure Oracle cares if Google can engineer around them or not. Sure, it would affect future money through continued licensing, but it doesn't absolve for any past infringement. Oracle wanted $6 billion and Google wanted $0 in damages. That's a whole of wiggle room and if Google is found to have infringed willfully then Oracle could get triple damages. If you split the difference of each company's claim of damages, that's $3 billion meaning could be on the hook for $10 billion. That's a lot of dough.
So far the judge has proven unconvinced by Oracle's damages claim.
http://fosspatents.blogspot.com/2011...f-oracles.html
There is also an estoppel argument which could significantly reduce it, though that one is very hairy - something of a wildcard.
Pretty much, as the judge presiding the case said so. Really, Oracle's lawyers need nothing more than these emails to win a huge settlement from a jury. The Google engineer claiming that all other languages "suck" and recommending licensing Java will tell a jury that Google was simply being stingy/arrogant/above the law.
Yup - now this article may be a little overly optimistic, but it lead me to believe that it's a matter between the Judget and Oracle about exactly how much "damages" Oracle can claim. With these emails not being excluded, I don't see how Oracle can't get a "willful infringement" determination which would triple whatever amount Oracle get's the court to agree to.
Also winning a rejection of Google's claim that advertising revenue shouldn't be considered is huge - the judge apparently saw through the whole "but Android is free so there are no damages" defense that Google was attempting. If they were successful in that and if I were a shareholder in Google I would be looking for class action status for Google pissing away millions of dollars in giving away Android for no benefit.
Of course that isn't going to happen because Google does benefit monetarily which is no doubt why the judge rejected their lame argument.
So much for the gloom and doom against an Oracle award for the last several weeks!
The only hope Google has is that the document can be rescinded (they are claiming attorney-client privilege), but that is not very likely.
According to the article they already tried that argument and it was rejected - hence it being published in this story!
I'd say "boned" is a good description of Google at this point. It's just a matter of how boned they are at this point. It won't be enough to sink them as a company, but if Oracle is indeed successful, Android looses it's single greatest advantage - "free"!
Ironically, this could be the best thing for Android. If Google is forced to charge to cover licensing, that means that they won't be able to just lounge around on the "free" thing - they will actually have to polish the platform up and make it more attractive and competitive. I think loosing to Oracle could be the best thing ever for Android being a platform that can compare to iOS or WebOS from a polish and usability standpoint. Right now - and web usage vs. units "sold" bears this out - only the geekiest of the geeky are using Android as a smartphone.
I've been following the tech industry for years and Google is by far the most cynical, dickish company the industry has seen. Their whole business model is to use their ad revenue to acquire, copy or steal technology to enter other markets and destroy value. They're worse than Microsoft at its most belligerent. If there was ever a time when Google were the good guys, it was a long time ago, back when they were still operating out of a garage and didn't have any revenue.
That more people either don't see this or choose not to see this truth is what's really disappointing
Yes they are. I had already read the post you linked, if you reread it you'll note that he doesn't mention any new patents. He's talking about the discovery phase of the existing trial, which is based on some subset of the hundred odd claims in those seven patents.
You may have noticed how many times the judge told Google they would lose? It seems a forgone conclusion. And if the lindholm memo is admitted, their whole empire cow,d collapse.
Android's free ride will certainly come to an end next year. but an extra $50 license cost per phone is not going to make that big a difference in the market.
From your lips to consumers ears.
Somehow I think they will be deaf to you.
If I am looking at similarly price iOS phone, WebOS, WP7 or Android - Android is going to loose every time.
Android's ONLY advantage right now is that extra $50 per phone that the carriers (remember who the real customer for every other phone manufacturer is! Apple is still alone in their end user focus!) get to pocket. Remove that and why should they push them? Esp. if Microsoft or HP start kicking some of that back to the carriers (Which I wouldn't be surprised if they do)?
About 50% of all Windows Mobile devices were touchscreen-only but Daniel has decided to put none in his graphic.
"touchscreen" WIndows Mobile devices substituted your finger for a stylus - poorly too, I might add.
They don't resemble multi-touch as implemented in the iPhone, then Android, then WebOS and finally Windows Phone 7 in the least.
Simply chucking the stylus for one's finger hardly makes Windows Mobile devices "touchscreen" in the same way as the current generation of touchscreen phones.
It's a very poor representation of the market before 2007.
No it's not when you compare equivalent functionality.
If anything he did Microsoft a favor by not citing the incredibly hideous and poor-selling Windows Mobile phones you are seemingly so enamored with!
Is infringing a patent really evil? If so good luck finding a software developer who isn't evil...
There's quite a difference between accidentally infringing and willfully infringing.
Why do you think the law recognizes this with the treble damages? And why do you think it looks like a forgone conclusion with these emails that Google will be paying triple of whatever Oracle gets the court to agree to for damages?
Also mostly the books were out of print, which further strengthens the fair use argument.
But many of them were not - and yet Google forged ahead.
Again, we are back to willful vs. accidental.... the willful is what is going to sink them if they don't change their arrogant ways...
Please correct me if I'm wrong, but from what I have read, most of the copyrights were expired or untraceable and as far as I heard no actual authors were screwed over, just a few people who happened to technically own the rights to books that they did not write or have anything to do with for the most part.
Your wrong. They steamrolled over current, legitimate "in the spirit of which Copyright was founded" rights holders - and when confronted pretty much told the holders to pound sand.
You might want to look at post 27 for an example of someone who had a "real" copyright as opposed to your "less valuable" copyright
The fact is there are a ton of Google apologists out there who love sticking up for them because Google tosses out tons of free crap. They only take a piece of your soul in the form of some personal information to sell it to the highest advertiser bidder - but hey, according to Eric Schmidt privacy is dead anyway and we should just get over it.
Wait - isn't he a previous CEO of google and current board member? Isn't there a conflict of interest in that proclamation?
Don't be evil my a$$...
You may have noticed how many times the judge told Google they would lose? It seems a forgone conclusion. And if the lindholm memo is admitted, their whole empire cow,d collapse.
Yes but it is still all contingent on the patents themselves. The judge is talking about the patents as they currently stand, surely you can see that? Naturally the judge in this case pays no attention to the invalidation process as it's not part of his purview, but that doesn't mean that it doesn't exist.
In other words... I don't give a rat's ass what anyone else believes about the definition of evil... it was Google that set the terms... "measured against the highest possible standards of ethical business conduct". Therefore, on Google's terms, anything outside of that can be considered evil.
... and this is about Google... not Apple, not Microsoft, not IBM or anyone else.... it was Google who said, "Don't be evil".
/golf clap
I think the blatant hypocrisy is what is so grating to many of us...
I'm betting Google will weasel their way out of this
Against Larry Ellison and Oracle?
I'll take that bet!