|Oracle's Case Further Undermined As Gosling Patent Topples|
|Written by Sue Gee|
|Saturday, 25 February 2012|
Oracle suffered another blow regarding its lawsuit against Google this week when the US Patent Office made a preliminary rejection of yet another of the patents on which it is basing its case.
Over several month's Oracle's original set of patent claims has been whittled away.
At Google's instigation the United States Patent and Trademark Office (USPTSO) embarked on a re-examination of all seven of the patent that Oracle asserted Google had violated with Android - with devastating results for Oracle.
Back in August 2010 when news of this lawsuit broke, Harry Fairhead wrote:
Of course it all hinges on the patents and most of these seem to be patents on the obvious. For example, the abstract from patent 6,910,205 [Interpreting functions utilizing a hybrid of virtual and native machine instructions] Basically it seems to patent the idea of compiling bits of the byte code - which to most programmers would seem to be an obvious and not patentable way of improving the efficiency of any code.
This week USPTO confirmed on a "final" basis the rejection of all the asserted claims of patent '205 referred to above and those of patents '702, a patent, which with the title Method and apparatus for pre-processing and packaging class files, is basically about moving duplicate data to a common repository, an idea that certainly predates 1997 when it was filed. This is simply an application of a general redundancy elimination applied to class files. If this was patentable we would all be paying licence fees to Oracle.
USPTO also gave its preliminary, "non-final" (meaning that Oracle can present more evidence) rejection of all the asserted claims of U.S. Patent No. RE38,104 on a "Method and apparatus for resolving data references in generated code" claimed as an invention by Java creator, James Gosling and filed as a patent in 1999.
Looking at this patent it boils down to the idea of symbolic resolution at runtime - which is what any interpreter does. A symbol is left embedded into the compiled code, i.e. within the intermediate language, and the symbol is resolved to a value before being executed by the virtual machine. The idea of runtime symbol resolution in this form is how an interpreter works and so the idea that this might be patentable just because the language is being run on a VM seems unlikely.
Referring to the breaking news of the lawsuit in August 2010, James Gosling in a blog post The shit finally hits the fan, noted how:
During the integration meetings between Sun and Oracle where we were being grilled about the patent situation between Sun and Google, we could see the Oracle lawyer's eyes sparkle. Filing patent suits was never in Sun's genetic code.
The next entry in Gosling's blog tells how Sun did pay much attention to patents until it was sued by IBM and lost, nearly going out of business. Gosling continues:
We [Sun] survived, but to help protect us from future suits we went on a patenting binge. Even though we had a basic distaste for patents, the game is what it is, and patents are essential in modern corporations, if only as a defensive measure. There was even an unofficial competition to see who could get the goofiest patent through the system.
So now it seems Oracle has been tripped up by Sun's "goofy" patents.
So where does this leave Oracle v Google?
Judge William Alsup yesterday raised the possibility of postponing the trial until the Patent Office's re-examination gets from "non-final" to "final". However, by asking both parties to consider the "track record of final rejections", a reference to the fact that Oracle has never had a rejection reversed in its favor, he is perhaps suggesting that Oracle might drop its patent claims in their entirety.
It is Oracle which is keen for a trial as soon as possible and the Judge who is keen that the case is resolved for good. He has already rejected a proposal by Oracle to separate the copyright and patent parts of the case and return to the patents at a later date - but if Oracle withdraws its patently claims with prejudice, so that it can never reassert them, perhaps the trial can still go ahead in April focused entirely on the copyright issues.
This is still a sword hanging over Android's head but it is now a clearly "goofy" one from the patent point of view but copyright is another matter.
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