A few months ago, Oracle (ORCL) rocked the Internet world by suing Google for patent infringement based on the Android system's use of Java. The suit was surprising for a few reasons: The Java patents had never been similarly defended by Sun Microsystems, which developed and controlled them until Oracle bought Sun earlier in 2010. Moreover, back when Sun controlled the patents, Oracle was among the many companies demanding Sun make them open source.

Ah, but what a difference a little change of ownership makes. Now, Google has laid out its defenses against the Oracle suit, making much of that history, and it filed a countersuit seeking to invalidate Oracle's patents.

Google's (GOOG) defenses are multifaceted: First, it denies it infringed Oracle's patents, second, its claims that the patents themselves are invalid, and third, Google says that even if the patents are valid and it does infringe them, Oracle shouldn't be allowed to enforce the patents because it has behaved badly.

Google further claims that if anybody is infringing, it's not the company, but Android users, who have such small pockets it's hard to imagine Oracle suing them. Google further charges that any copyright infringement not otherwise defended is protected by the Fair Use doctrine, and notes that substantial uses of Android are non-infringing. In fact Google offers so many defenses, it's not possible to do them all justice here: The Am Law Litigation Daily called it the "kitchen sink" approach.

Tech Giants Behaving Badly

The most interesting parts of the countersuit are the claims that Oracle's (and Sun's) behavior should prevent Oracle from winning, even if its claims were otherwise valid. One type of bad behavior that allegedly gives Oracle "unclean hands" is its alleged practice of requiring people to pay for licenses for stuff that isn't protected by Oracle's patents or copyrights in order to get free licenses for the stuff that is. Google calls that practice a "misuse" of Oracle's patents, although "extortion" is implied.

Google also says Oracle -- through Sun -- failed to enforce the patents and copyrights for so many years, Google was deceived into thinking that using the Java patents without permission was allowed. Moreover, Google claims that Oracle essentially granted everyone a license to use the Java patents and copyrights. Letting Oracle sue for infringement now just wouldn't be fair.

What would it take to for Google to convince a court to invalidate the patents? Google repeats its kitchen sink approach on this side as well: It claims they involve abstract ideas not allowed to be patented; it says the ideas aren't useful enough to justify patents; or that they're are so obvious that no real inventing was involved. Finally, Google claims the patents aren't sufficiently supported in their underlying applications.

Google only needs to win on one ground for an individual patent to make that patent disappear. But it's impossible to tell how likely that is, especially considering that the attacks are all written in boilerplate language and liberally sprinkled with "and/or." Still, a kitchen sink is a pretty heavy object to throw at something. We'll see how many patents survive the impact.

That assumes, of course, that Oracle and Google don't settle first. But Google has already proved, via its battle with Viacom (VIA) over copyrighted YouTube content, that it's willing to go to trial, and all the way to a verdict, if it doesn't like the settlement terms on the table.

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Google's motto is " Do no evil." I guess it depends on who is defining "evil."

November 15 2010 at 1:20 PM Report abuse rate up rate down Reply