Oracle's patents case against Google weakening

Judge may stay case pending patents' reexamination

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Oracle's Java infringement case against Google isn't going exceptionally well for the database giant these days, with another setback delivered by the US Patent and Trademark Office (USPTO) in the form of a patent reexamination this week.

Historically, things haven't been rosy for Oracle since their August 2010 lawsuit was launched, accusing Google of infringing on Oracle's Java software.

Oracle acquired Sun Microsystems' Java technology when it bought the company in 2010. Instead of licensing Java from Oracle to use in Android, Google developed a "clean room" version of the Java virtual machine, Dalvik, for Android instead. Oracle says that Dalvik deliberately infringes on Java anyway, despite efforts to build Dalvik from scratch.

[Also see: Google in the early days]

In May of this year the judge in the case, the Hon. William Alsup, proposed to scale back Oracle's original 132 patent infringement claims to a mere three. This was seen as big setback in Oracle's case.

Oracle countered with a request to assert 21 patent claims against Google and a request to hold off any decision to narrow the number of claims until the final pre-trial conference. Alsup honored that request, but he is holding what could be Google's eventual salvation in this case up his sleeve: the option to stay the case until all of the patents in question are reexamined by the USPTO for validity.

That reexamination process could take years and, as evidenced this week, may not work out so well for Oracle, either.

According to Groklaw, one of the patents Oracle wants to use against Google, U.S. Patent 6192476, just had its reexamination completed. The findings? Seventeen of the patent's 21 claims were rejected, seriously weakening the patent for use in a lawsuit.

That puts Oracle in a pickle. If they fight too hard on the number of claims asserted, Alsup will very likely just say the heck with it and order all of Oracle's asserted patents to be reexamined so the court will know without a doubt what patents have merit and what don't. That will take a long time and will seriously delay Oracle's plan to monetize their Java investment through litigation.

But, if Oracle agrees to Alsup's final order on number of patents, there is a real possibility that the patents Oracle chooses could get invalidated anyway, if they don't pick ones that have merit. Not too mention they have to be patents that they can prove Google infringed. Strategically, the broader the patent claims, the better chance Google could be found guilty by a jury of infringement. But if reexamination finds such broad patents invalid, even after a trial is over, the patent holder is owed nothing.

Google, clearly, would like a stay to reexamine everything. That kind of time just lets Android march right along without interference from Oracle. Hardware vendors who might have been secondary targets for Oracle may get a break too, because they could also request reexaminations to stall Oracle.

We'll have to see what Alsup decides, but this case is far from the slam-dunk Android's detractors would have you think.

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