Patent News | "We didn't know Sun had patents: Google"

By : Rachel King
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Category : Patent News

Robert Van Nest of Keker and Van Nest LLP presented the Mountain View, California-based giant's opening statements for phase two, focusing on patent infringement, at the US District Court of Northern California earlier this week.

Google's case in phase two will rest on three key points:

Google made fundamentally different design choices for Android
Google independently developed Android not knowing of Sun patents
Android does not use Sun's technology.
Van Nest asserted that the two patents in question are "very specific, narrow patents" that focus on details that Google is not using. He added "that's no surprise", because none of the design engineers at Google were aware of the US Reissue No. 38,104 patent or US Patent No. 6,061,520 when developing Android.

Recalling some of the arguments about Oracle's motivations in this lawsuit, Van Nest also cited that "Oracle didn't even complain about these" patents until July 2010, after which the Dalvik and Java virtual machines had already been on the market for two years.

Through expert witness testimony, Van Nest explained Google's defence strategy, which will rely on explaining the "many, many differences" between the Java virtual machine and the Dalvik virtual machine.

Van Nest also went into professor mode for the jury, giving a brief yet detailed lecture about code compilers, and how Android differs. For example, Android doesn't use Java bytecode, but rather Dalvik executable code.

Reminding the jury of their instructions from the judge, Van Nest noted that Oracle has the burden to prove that Google infringed upon all aspects of the patents in this lawsuit, and not just four out of five qualities.

Van Nest tried to better explain this by comparing a soccer ball and a football. If someone wanted to patent a ball for playing sports, one person could patent a soccer ball and say it must be made of leather, stitched together, filled with air and spherical. However, a football wouldn't violate this patent, because while it is made of leather, stitched together and filled with air — it is not spherical.

In his own effort of reassurance to the jury, Van Nest commented that phase two will be a lot shorter, and that all of the evidence should be in this week. He added that there won't be any "celebrities" testifying in this round, but rather engineers and developers.

Van Nest also joked that the infamous API-like "file cabinet" will not be making an appearance again.

Morrison and Foerster's Michael Jacobs provided Oracle's opening statements for phase two on Monday afternoon, immediately after the partial verdict in the copyrights segment of the case was read. In his argument, Jacobs outlined four faults with Google's case in this half of the trial — most especially pointing out that Google has no fair-use defence in this portion of the lawsuit.

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