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Google fighting to suppress evidence Android willfully infringed upon Oracle's Java

Apple's primary competitor in smartphone platforms is facing critical new evidence that indicates Google willfully infringed upon Java to develop Android, a finding that could damage Google's efforts to defend Android from additional patent claims from Apple and others.

According to reports by Florian Mueller of FOSS Patents, the evidence in question centers around two emails, including one from Google's Andy Rubin, the original founder of the Android startup Google acquired to begin its smartphone platform.

Rubin first founded Danger as a mobile Java platform and subsequently started work on Android before it became part of Google, where Android shifted from a full Java platform to a modified version that Google intended to be different enough to avoid paying Sun any licensing fees.

Andy Rubin's other definition of open

Back in 2005, well before Android was released, Rubin wrote, "If Sun doesn't want to work with us, we have two options: 1) Abandon our work and adopt MSFT CLR VM and C# language - or - 2) Do Java anyway and defend our decision, perhaps making enemies along the way."

Regarding that email, Mueller noted that the judge overseeing the case observed, "Google may have simply been brazen, preferring to roll the dice on possible litigation rather than to pay a fair price [to license Java]."

Rubin's email suggests that the Android group was fully aware that it had already invested a lot of work into its Java-related platform, too much so to shift to the adoption of Microsoft's alternative language and runtime.

However, Google also rejected a deal with Sun to pay for Java licensing, and Rubin's comments make it clear that the company planned to just keep going and see what would happen, inviting "enemies," and, presumably, their legal response.

"We need to negotiate a license for Java"

Nearly five years later, a second internal Google email known as the "Lindholm draft" stated, "What we've actually been asked to do (by [Google founders] Larry [Page] and Sergey [Brin]) is to investigate what technical alternatives exist to Java for Android and Chrome. We've been over a bunch of these, and think they all suck. We conclude that we need to negotiate a license for Java under the terms we need."

That email caused federal judge Alsup to observe in a hearing that, as Florian reported, "a good trial lawyer would just need that document 'and the Magna Carta' (arguably the origin of common law) to win this case on Oracle's behalf and have Google found to infringe Oracle's rights willfully."

Publicly, Google has accused Oracle (which now owns Sun's Java) along with Apple and Microsoft, of "a hostile, organized campaign against Android […] waged through bogus patents," without ever acknowledging that the company itself had determined that Android legitimately needed to license Java and yet simply refused to do so.

Google attempted to bury the documents in question in its case with Oracle, claiming that the Lindholm message was protected by attorney client privilege. Instead, Judge Alsup denied Google's request, noting that it was "an incomplete draft of an e-mail message” which “never was sent to anyone," according to a report by Bloomberg .

When pressed to explain the email by Bloomberg, Google spokesperson Katelin Todhunter-Gerberg, stated, "We aren’t commenting on this.”

Google's willful infringement could ease suits against Android by Apple, others

While Oracle is unlikely to be awarded the staggering $2.6 billion damages claim it originally demanded for Google's infringement of Java by Android, the fight between the two is almost certainly going to be aimed at determining a workable settlement, rather than questioning whether Google's Android actually infringes upon Java.

Such a settlement would likely involve steep, ongoing Android royalties for Oracle, which like Microsoft, has largely been shut out of the smartphone market by Google's dissemination of the freely available Android. Once the primary development platform among mobile phones, Oracle's Java (still licensed by Nokia's Symbian and RIM's BlackBerry) has been bumped down into third place behind all Android licensees combined and Apple's iOS.

While the judge overseeing the case has instructed Oracle to rewrite its damages report, the court did not agree with Google that its advertising revenue should be off the table in determining Oracle's damages. Instead, the judge accepted Oracle's "network affects theory," stating that Oracle "may take into account at least some of Defendant's non-mobile, American-based businesses in formulating its damages assessment."

A finding that Google willfully infringed upon Java would also enable Oracle to demand triple its actual damages. Such a ruling could also help establish that Google has a history of willful infringement of rival companies' intellectual property, a finding that would make it easier for others, including Apple and Microsoft, to seek damages from Google and potentially its Android licensees.

Additional sources of pain for Google

Google's vast revenues from Internet advertising would likely allow the search giant to easily pay off such damage claims, but Android licensees may balk at enmeshing themselves with Google and its ostensibly open software because of the legal liability involved with it.

As Google itself has feared, adding royalty fees to Microsoft and Oracle into Android licensing may prevent potential licensees from seeing any benefit to using Google's version of the Linux/Java/Flash mobile software platform, and encourage some companies to develop their own unique platforms instead, as Samsung as already done with Bada, as HP has opted to with with webOS, as Nokia has with its involvement with Microsoft, and as Motorola has in its custom Linux platform efforts.

The appearance of multiple mobile platforms would likely benefit Apple, which has always performed better within a competitive market as opposed to battling a single large monopoly platform. A legal dispute that holds back Android could also give a competitive edge to the joint partnership of Nokia and Microsoft, as well as promote Oracle's legitimate JavaME as a stronger contender. In the high end smartphone space, however, a blow to Android would clearly be a tremendous opportunity for Apple, given the distant, flagging positions of Nokia, RIM, HP/Palm, and Microsoft.

Legal issues surrounding BSD Unix in the early 1990s similarly helped to pave the way for the unobstructed growth of Linux, giving that platform a head start that blunted interest in BSD for decades until Apple's rise in prominence over the last five years helped to again establish BSD as one of the largest deployed UNIX kernels.

Oracle's case against Google continues to carry an October 31 trial date, which may push the companies toward a settlement. On the other hand, Oracle is unlikely to want to give up easily, and may push for a stay in the case for an opportunity to expand its damage claims. Additionally, Oracle could opt to bring action against Google before the ITC, where it could threaten to win an injunction against the US import of Android phones, a bargaining technique that would be devastating to Google's mobile aspirations.