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Android: Swimming With the Patent Sharks

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The folks in Mountain View should be celebrating. After all, Google Android (s goog) has been on a tear these past six months, claiming 32 percent of all new smartphone purchases, according to Nielsen data. Dampening the mood at the Googleplex, however, is a rash of lawsuits directly or indirectly aimed at Android. Google may be winning in the mobile market, but it’s unclear how it will fare in court.

It’s also not clear what the company could have done differently. Lawsuits, after all, appear to be par for the course in the mobile market, with at least 20 lawsuits being flung between companies as diverse as Kodak (s ek), Oracle (s orcl), Toshiba, Samsung, and RIM (s rimm).

But Android particularly annoys Apple (s aapl), Microsoft (s msft), and Oracle, albeit for very different reasons.

Apple, design purist that it is, disdains the momentum Android has seen. Apple is, of course, the early winner in the smartphone market, and its lawsuit against device manufacturer HTC seems to be a means to slow Android’s advances. It hasn’t worked. Not content to sit by and watch its market share erode as developers flock to open-source Android, however, Apple has loosened its grip on developers and is making a serious attempt to win in the market, not simply the courts.

Microsoft, a serial underachiever in mobile, despises Android for the same reason it has long wrung its hands over Linux servers: Microsoft doesn’t know how to compete with free. Google gives Android away, but Microsoft has repeatedly stressed that patent-encumbered Android isn’t free. As Microsoft CEO Steve Ballmer told The Wall Street Journal, “Android has a patent fee. It’s not like Android’s free. You do have to license patents.”

This is the same strategy Microsoft has employed in the server market, signing up licensees to its patent portfolio based on vague FUD (fear, uncertainty and doubt) that Linux violates its patents. If Microsoft can force Google to license its patents, it can make it harder for Google to keep Android free.

It’s by no means clear that Microsoft will win. As TechDirt notes, at least some of the patent claims made are absurd. But it’s possible, as Mary Jo Foley speculates, that Microsoft is hoping to boost interest in Windows 7 by creating FUD around Android. Good luck with that.

The most interesting of the Android patent lawsuits, however, is Oracle’s, in large part because it seems the least motivated by a desire to cripple Android. I’ve written that Oracle sued Google to skim some of Google’s mobile money for itself, and I continue to believe this is part of Oracle’s rationale.

But there’s more to the story than that. Much more.

First, Oracle inherited the lawsuit from Sun. It didn’t initiate it. Sun was actively preparing to sue Google over Android in order to protect Java. Oracle was apprised of the lawsuit during its short due diligence process prior to its acquisition of Sun, and decided to move forward with it, but the suit was founded under Sun CEO Jonathan Schwartz’s leadership, not Oracle CEO Larry Ellison’s.

Second, the lawsuit is likely more related to Oracle’s ability to make money from licensing Java ME generally, and not specifically to Google. Indeed, sources inside Sun/Oracle have told me that negotiations with Google involved roughly $0.00 changing hands. The problem wasn’t one of negotiating a license fee for Java and its associated patents. The problem was more fundamental: Sun (then Oracle) had the option to let Google attempt its end-run around Java ME licensing restrictions, but undoubtedly it would then come under increased pressure from RIM and other licensees not afforded that leeway. To keep its Java ME licensees happy, Sun (Oracle) couldn’t afford to allow Google to snub the Java ME licensing requirements.

So why didn’t Google just go along with Sun and take a fee-free license to use Java ME? Because doing so would have required Google to keep its Java implementation consistent with the standard instead of forking it with its Dalvik virtual machine. As much as Google might talk about standards, Google has much to gain by keeping Android applications on the Android platform, rather than allowing them to run on competing platforms like RIM.

Google has now answered Oracle’s complaint, denying all allegations and eviscerating Oracle for hypocrisy over the open-sourcing of Java. What Google doesn’t do, however, is reveal its own reasons for wanting Java open-sourced, which I believe have much to do with forking Java and little to do with any particular affection for open source.

It thus does little to answer the critiques laid out in Oracle’s response to Google’s formal answer to Oracle’s complaint:

In developing Android, Google chose to use Java code without obtaining a license. Additionally, it modified the technology so it is not compliant with Java’s central design principle to ‘write once and run anywhere.’ Google’s infringement and fragmentation of Java code not only damages Oracle, it clearly harms consumers, developers and device manufacturers.

Whether Oracle is being hypocritical or not is immaterial. Whether Java should be open-sourced or not is also immaterial. Google’s contention that openness is essential to the mobile industry is also immaterial.

What is material is Oracle’s accusation that Google chose to circumvent the Java ME licensing process which RIM and others abide. That is what is at issue, not Google’s appeals to the open-source crowd.

Ironically, then, Oracle, perhaps the greediest of Android’s patent foes, may well have the purest motives in suing over Android. Of the three litigants, only Oracle seems to actually be defending its patents, rather than attempting to throttle Android’s momentum.

Image courtesy flickr user miusam-ck

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31 Responses to “Android: Swimming With the Patent Sharks”

  1. The really sad story here, not mentioned in most discussions, is that small Java for industrial use (not just handsets) has been stalled and stuck in the past for 5+ years. Android is the first breath of something really new and interesting, which could be why there are at least three major vendors adapting it for real-time industrial use. See some of my muddled thoughts about this here:

    The other frustration with JME is that the baseline commercial license is 5-6 figures! That means any small companies can forget it. No wonder those people have an interest in Android, or anything else affordable (embedded Linux in general, for example).

    Is it possible that Oracle realizes they are so behind in keeping JME up to date that they are better off trying to bring Android into the fold? Or asked another way, if Oracle wants JME to compete with Android what would it do? A modern JME would want many of the same capabilities as Android and Dalvik. Sun had the chance to make a cool small JVM: Squawk, as used on Sun SPOTs. But it chose the same ridiculous commercial license as JME, so today commercial Squawk licenses number zero. And Squawk’s impact in the embedded space is the same: none. Squawk could have been a huge success. Now it’s probably too late.

    In the mobile world, what are developers writing for? 1- iPhone. 2- Android. Who cares about Java for phone any more? Why should they – where’s the market? Sun killed the “Java store” after all the fanfare at JavaOne 2009. How can Oracle compete with these platforms now (assuming they want to)?

    I used to think that Java had a lot to offer embedded developers – I even formed a company around it. Now I don’t know. Personally I am back to writing Zigbee code and other embedded apps in C. Sigh.

  2. “Google has much to gain by keeping Android applications on the Android platform, rather than allowing them to run on competing platforms like RIM.”

    It would take a lot more than a virtual machine to get Android apps running on competing platforms.

    Besides, the Dalvik VM is open source.

  3. I read all articles on the matter Oracle vs. Google, and think you are right. I like Google very much but can see it is forking java.

    There is no such thing like Google is not doing java. If they are using java as programming language, they must comply with all JCP requirements and java specifications. Same thing as M$ did years ago with the now defunct j++. I only hope Google not dropping java.

    Your argument about other licensees will complain is valid too.

    Good article

  4. Ed Daniel

    Adding to your notes… I found the NYT coverage enlightening, especially how they linked IP staff behind the HTC suit and the Oracle suit as being the same person ;-)

    “The legal preparations were led by Noreen Krall, Sun’s former chief intellectual property counsel. Ms. Krall joined Apple this year as its senior director for intellectual property law and litigation. In March, Apple sued the cellphone maker HTC, saying its Android-based phone infringed on patents for Apple’s iPhone. Google was not sued, but Google issued a statement saying “we stand behind” the Android operating system and its industry partners. ”

    Go figure… someone’s making a career for themselves off the back of all this turmoil :-(

  5. James Henstridge

    Isn’t a more likely explanation for Google not using Java ME that they considered it unsuitable for the problems they were trying to solve?

    You imply that Android’s proprietary APIs are there to impede application portability, but how many Android apps could be written purely to the Java ME API?

    You mentioned RIM as a Java ME licensee, so lets look at it from the other direction: if Android was based on Java ME, how many Blackberry apps would work without modification?

    Having a Java ME implementation on Android would undoubtedly be good for Java ME, but it is not clear how important it is for Android.

    • I’m glad someone pointed this out. The entire Android application paradigm is different than whats going on with any other mobile system. The tech media in general has overlooked that while calling any and everything on any other mobile OS “revolutionary”. Even if Android used JavaME the apps still would not port to or from other devices directly if at all. The intent system alone stops that from happening. So maybe Google actually developed a VM that suited their purposes. I find this whole idea that they only did this to get around Java licensing to be a rather unfair accusation.

    • My thoughts exactly. I also take issue with the whole line of reasoning that anything that happens to be written in the Java language has to adhere to the “write once, run anywhere” philosophy. As a developer, I happen to be smart enough to know the difference between writing a Java application and an Android application that happens to be coded in Java.

    • You hit the nail on the head. JME: single task, no built in data sharing across apps, memory space assumptions from 10 years ago, etc, and it costs $100K. Android: decent multi-tasking each in its own DVM, modern assumptions about memory and UI, built in data sharing across apps, etc, and it is nearly $0. Hmmm. Which would you choose? It can’t be an accident that Eric Schmidt of Google chose to purchase Dalvik/Android rather than license JME from Sun, where he directed Java development for 10 years…

  6. “But it’s possible, as Mary Jo Foley speculates, that Microsoft is hoping to boost interest in Windows 7 by creating FUD around Android. Good luck with that.”

    I’ve got to disagree with this one. Go into a phone store and listen in on buyers’ conversations with sales people. If the phrase “hey, isn’t that Android phone using Microsoft patents?” comes up in any conversation, I’ll buy you a beer.

    The only people that care about patent issues like these are obsessive-compulsive tech news followers, journalists, and the companies themselves. Everyone else is basically immune to caring, so FUD isn’t an issue.

    • You’re wrong. Android is offered to phone manufactures to use and they VERY MUCH care about the risk of being sued into oblivion. That’s where the FUD is targeted: to make phone manufactures consider Windows over Android. That’s why Microsoft sued MOTOROLA over its use of Android and not (only) Google.

      • Well its quite obvious that none of them seem to care so far. HTC is doubling revenue with Android. Motorola saved themselves with it. No one else even has a chance against the iPhone without it. So what exactly are they going to do?…lay down and use WinPhone 7? WinMo 6 didn’t get them anywhere and unless WinPhone 7 has similar success to Android they are going to stick with Android and fight or they may as well all just close their doors. Apple will just run over them.

  7. Wihle Google may like to keep android apps on android, I would suggest that they didn’t use java ME because it is pretty much useless. It don’t have all the features they needed, I’m yet to see a java me device that has any performance at all, and it would be nearly impossible to have a phone running dozens of jvm instances at the same time and still be usable (heck even one is bad enough).

  8. MSFT doesnt know how to compete with free? Matt Asay, how do you come up with this stuff? Office continues to crush Openoffice. Win Server looked linux in the eye, crushed it. OSS on the desktop? No thanks. Your points about the mobile space are fair. But write facts, dont spread Open Source propaganda. It’s borderline unethical as a journalist.

    • I’d sure love to see where Windows Server is crushing Linux in usage. Sales compare company to company such as Red Hat to MS. Server to server is about usage and any way you slice that Linux looks to be more popular.

  9. Matt: Was Sun really _actively_preparing_ to sue Google over patent infringement?

    I understand that the sale of Sun was pitched to Oracle with the potential of a lawsuit, but this is subtly different from actually planning of launching a lawsuit itself. Is there any more information on this?

  10. I found what I will call the “hypocrisy background” quite odd, a bullet shot into Google’s own foot. Not only does it seem irrelevant in court, it’s clear that Sun’s intentions (although muddled) were consistent — they are now Oracle’s intentions. But most of all, Google goes to great pains to point out this “hypocrisy” and then goes straight into telling how great for humanity the OHA is… while ignoring that Google’s services and apps do not have the same openness at all, are closed, are patented, have restrictions on usage and operate as a gating mechanism to access open Android in much the same way that the TCK did/does for Java.

  11. @Todd: I would be very surprised to find improperly licensed code in any hardware Oracle ships; Sun was absolutely scrupulous at checking every line of code and in my 5 years oversight of open source at Sun I only know of problems caused by lower standards at companies we acquired. Which we fixed.

    • Would love to see nicely written your thoughts about it.
      @Matt Asay – Thanks for the article, it contains the information I was trying to grasp from different sources. I ardently hope this will not affect Android sells, or – better – boost it.

  12. @PJ: Whether it uses a *clean* implementation of Java is very much in question. Google says no (read the response), while Oracle says yes. The judge will decide.

    As for who brought the suit, you’re right: it was Oracle. But Sun had every intention of bringing that same suit. Just ask the people involved (as I did).

    @Todd: you’re likely right, but what you argue is beside the point. It’s not a question of whether Oracle uses FOSS. Of course it does. It’s not even a question of whether it uses FOSS correctly. The question is about Google’s use of Oracle’s technology.

    As for hater, you might want to read more of what I’ve written. I’m a big Google fan and an unabashed open source advocate. It’s just in this case Google’s appeal to the open source masses is disingenuous at best. Oracle is not the bad guy here.

    • Wasn’t accusing you of being a hater, just Ellison.

      Judge smart enough to understand Oracle inherited the technology in question, through acquisition. If Sun didn’t cry wolf pre-acquisition, Oracle is on shaking ground doing so post-acquisition. First motion from the judge should be to subpoena the IP layers Sun had on retainer, ask why then didn’t act. Once it’s determined they had no grounds to, Oracle suit thrown out.

      Disclaimer: I am not an IP attorney, nor do I play one on TV


  13. Weak. Ellison wouldn’t survive an audit of all those thousands of device drivers that ship with oracle hardware, lurking therein is a bunch of FOSS.

    Haters gonna hate ( and patent troll )

    • I would be very surprised to find improperly licensed code in any hardware Oracle ships; Sun was absolutely scrupulous at checking every line of code and in my 5 years oversight of open source at Sun I only know of problems caused by lower standards at companies we acquired. Which we fixed.

  14. Why should Google pay to license Java when it doesn’t use Java in Android?

    Also, I believe it was in fact Oracle, not Sun, who filed suit… Gosling says on his blog at

    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. Alas….

    Which to me reads that Sun might’ve had a suit but never brought it, while Oracle jumped at the chance.