
Google Bowls a Googly - Possible invalidation of Oracle's patents - bluesmoon
http://blogs.computerworlduk.com/open-enterprise/2010/11/google-bowls-a-googly/index.htm
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grellas
Without getting into detail (or touching on the related copyright issues), I
would sum this up as follows concerning the software patents at issue in this
case:

Google is taking its cue, of all things, from the Supreme Court's _Bilski_
decision, which upheld business method and software patents in general but
which also gave lower courts a powerful tool with which to smash them if it
liked - and that is to invalidate them as unpatentable "abstract ideas" if
they did not satisfy the so-called machine-or-transformation test and if there
were no other basis by which to remove them from the abstract-idea category.

Many here were deeply disappointed in the _Bilski_ outcome but, take heart,
that battle is not over yet. Even while rejecting the machine-or-
transformation test as an _exclusive_ test for saying that a particular
business method meets the test for patentable subject matter, the Supreme
Court nonetheless upheld that test as a _useful indicator_ of whether
something was patentable or not. If, for example, a software patent failed to
meet that test, then a court could potentially conclude that it did not
constitute patentable subject matter. What then? In all likelihood, a court
would say, as did the Supreme Court in _Bilski_ , that the challenged patent
fails as constituting only an abstract idea, which is not patentable.

Courts have more and more been using the _Bilski_ precedent as authority to
strike down software and business method patents on abstract-idea grounds.
_Bilski_ pointed the way and many courts are following. (See, e.g.,
[http://ipspotlight.com/2010/08/19/district-court-rules-
inter...](http://ipspotlight.com/2010/08/19/district-court-rules-internet-
advertising-patent-invalid-under-bilski/))

The Groklaw piece referred to in this article discusses this in more detail
(see <http://www.groklaw.net/article.php?story=20101111114933605>). Moreover,
in an August 13, 2010 piece
(<http://groklaw.net/article.php?story=20100813112425821>), Groklaw reported
that "Groklaw member Celtic_hackr went through [the Oracle software patents]
and sees none that are tied to any specific machine."

With its latest filing, Google is revealing its strategy as one of taking on
Oracle's software patents head on and asking the court to declare them invalid
on the abstract-idea ground (among others). This is very aggressive and has
potentially huge consequences.

Bottom line: Oracle can go fishing for opportunistic dollars but it will do so
against Google only at a potentially devastating cost to its newly-acquired
Sun assets. In the precatory words of Groklaw (in the item last cited above):
"And may software patents crash into the ocean as an unintended consequence of
this patent attack."

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gojomo
Before people celebrate, remember that Google's arguments are _negotiations
via the legal system_ , not a battle-to-the-death over principle.

If Oracle offers Google and its ecosystem a reasonable deal, in which Google
publicly acknowledges that Oracle's patents are valid, the matter will be
resolved -- and Oracle's patents will be stronger than ever, presumptively,
because they were legally tested by a dispute with a deep-pocketed adversary
who eventually agreed to license them.

Compare also: when first sued by the Author's Guild in a class action over
book-scanning, Google originally argued they had a fair-use right to
scan/index the books without prior permission. When a settlement deal
favorable to Google's continued operations was proffered, Google stopped
fighting for the general fair use principle, and instead has been defending
the benefits of their settlement agreement. [1] What should others who want to
scan/index books do? Now, Google suggests they should get explicit permission
beforehand, using the precedents Google set. [2]

I don't blame Google for making necessary practical legal compromises for
their mission, but I also don't put them up on a pedestal, as if they were a
disinterested champion who will establish equal rights for everyone. They'll
pursue their organizational interests, as with any other ambitious
organization.

[1] <http://www.publicknowledge.org/node/1828>

[2]
[http://www.nytimes.com/2009/10/09/opinion/09brin.html?pagewa...](http://www.nytimes.com/2009/10/09/opinion/09brin.html?pagewanted=all)

"If Google Books is successful, others will follow. And they will have an
easier path: this agreement creates a books rights registry that will
encourage rights holders to come forward and will provide a convenient way for
other projects to obtain permissions. While new projects will not immediately
have the same rights to orphan works, the agreement will be a beacon of
compromise in case of a similar lawsuit, and it will serve as a precedent for
orphan works legislation, which Google has always supported and will continue
to support."

~~~
jbooth
In general, I'm inclined to agree with you, certainly with any other company,
and probably with Google..

But Page and Brin probably have the muscle to make a bad business decision and
fight out the patent if they think they can win, and it's far reaching enough
that they might go for it.

~~~
steadicat
Count on Google to fight the good fight! Like they did when they gave up Net
Neutrality to make a deal with Verizon.

~~~
redthrowaway
Playing devil's advocate here, but their deal _would_ secure net neutrality -
for broadband. It's only mobile that gets fucked over. Now, anyone can see
that mobile is the future, so this isn't much to hang your hat on, but it is
something.

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hooeezit
For those in the US, a googly is a way of delivering (pitching) a ball in
Cricket. The American equivalent terminology would be 'throwing a curveball'

~~~
gokhan
So you're saying that anyone outside US knows about this Cricket thing.

~~~
mdda
Cricket is probably the #2 sport in the world..
<http://www.mostpopularsports.net/>

Of course, I assumed that American football would be right up there : Turns
out, it's a minority thing, by a long way.

~~~
NZ_Matt
Take that list with a grain of salt considering they left out rugby
completely.

~~~
barrkel
They seem to have called it "Football", i.e. lumped in with American Football.

------
anigbrowl
By offering 20 defenses, Google is showing it intends to fight the case just
as aggressively as Oracle. In another sense, they're not revealing much at
all, but rather raising every conceivable objection now to keep their options
open (as a case progresses, introducing a new argument if an existing one
turns out to be flawed becomes problematic).

The most interesting thing - though I don't know enough to guess how far they
will get with this one, is paragraph 3 under 'Defenses': '3. Each of the
Patents-in-Suit is invalid under 35 U.S.C. § 101 because one or more claims
are directed to abstract ideas or other non-statutory subject matter.' This
particular argument would, I believe, invalidate most software patents if
sustained at trial. I am not a lawyer, and especially not a patent lawyer,
just a pre-law student with a hunch.

It will be interesting to watch this case unfold. Judge Alsup wants to retire
from the bench and return to private practice, but he has a very good
reputation for handling complex litigation cases (and explaining the legal
issues clearly in his opinions); this one looks to be time-consuming, but
would also boost his reputation significantly.

Edit: snap ;-)

------
flatline
Exhibit J is interesting. So much of this code looks like boilerplate to me
that I don't think it says much about whether it was copied. Given standard
naming conventions, the public interface, and the simplicity of the code, a
lot of developers would create almost identical implementations. I mean, the
code doesn't actually DO hardly anything.

~~~
confuzatron
Some aspects of it look copied to me - the class's 10 fields are in identical
order. Some parameters to the function look lifted straight from code
generated by disassembling bytecode (flag flag1 set set1). However, these may
be explainable by some other means.

[http://www.wolframalpha.com/input/?i=permutations+of+10+item...](http://www.wolframalpha.com/input/?i=permutations+of+10+items)

~~~
blasdel
They were probably listed in that order in the documentation, and the javadocs
are generated from the source.

It'd be more suspect if they were in a different order, especially if they
were ordered as if they were in a hashtable that was iterated over.

~~~
confuzatron
Interesting but unconvincing theory. I have never seen public API
documentation that lists private fields before. This certainly makes no
mention of private fields:
[http://www.docjar.com/docs/api/sun/security/provider/certpat...](http://www.docjar.com/docs/api/sun/security/provider/certpath/PolicyNodeImpl.html)

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VladRussian
"better search" is Evolution. If Google is able to create precedent
invalidating the software patents system, that would be a Revolution (not that
a Revolution with all its mess is always, or even sometimes, a best thing
though :)

------
steve19
I think we all know how this will end: a joint-licensing agreement that allows
Oracle to go after or threaten the next VM vendor.

------
redthrowaway
I know this is entirely tangential, but did anyone else notice how _ugly_
Google's code is? Sun's is neat and clean; Google's is a mess.

<http://groklaw.net/pdf2/OraGoogle-36-10.pdf>

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drawkbox
While it is Oracle vs. Google, Oracle is buddying up to Apple at the same
time, this is one of the best viral marketing campaigns ever. Attach/Attack
current big names and be very visible.

