Patent Evidence Grows Against Google’s Android

New Google CEO Larry Page will have many issues to address, but mounting evidence that Google’s Android operating system infringes Oracle’s patents should be a high priority.

Oracle sued Google in August, claiming Android includes both patents and copyright material relating to Java, a technology Oracle acquired when it bought Sun Microsystems at the start of 2010. Google has contested the suit, but has so far not made the customary response – countersuing Oracle for infringing Google patents.

“A pattern of direct copying”

“More than five months after Oracle’s complaint, Google appears unable to countersue Oracle over patent infringement,” said software patent blogger Florian Mueller. “while evidence is mounting that different components of the Android mobile operating system may indeed violate copyrights of Sun Microsystems.”

On copyrights, Mueller has posted detailed comparisons of the source code of Android and Sun’s original Java code, which include many files with a “pattern of direct copying,” and files which were marked “PROPRIETARY/CONFIDENTIAL” by Sun, along with a copyright notice file that says: “DO NOT DISTRIBUTE!”

“It seems to me that Oracle has not even presented the tip of the iceberg in its amended complaint,” said Mueller. “The discovery process could be very fruitful for Oracle, and may become dreadful for Google.”

Oracle’s suit against Google has been criticised because the company changed its stance on whether Java should be open source, when it purchased Sun Microsystems. The industry had relied on Sun’s good-natured approach to Java, but Oracle lawyers immediately saw it as an asset to exploit, according to Java’s creator James Gosling.

Is Google a patent pigmy?

The Android operating system now outsells Apple’s iPhone in the US smartphone market, and a successful suit against it could be profitable for Oracle. Some commentators argue  that the suit was a significant factor in Oracle’s purchase of Sun.

Android is implicated in around a dozen disputes which started in 2010, including one between Apple and HTC, however Google’s response has been limited by its own weak patent portfolio, according to Mueller.

Google does not figure on the list of 2010’s top patent winners and only holds 576 patents in total, which makes it weak in the cross-licensing discussions which normally settle patent disputes, said Mueller. Cross licensing is expected to be the end-game of the long running Apple-Nokia dispute, for instance.

Android’s increasing share of the mobile phone market makes it a potentially profitable target for patent law suits – a “suit magnet” in the words of commentator Maureen O’Gara.

However, Google’s tardy response to the Oracle suit does not mean it will not counter-sue. Google refused to comment on the case, at all and a patent lawyer commented to eWEEK Europe that any assumption that Google will not countersue is “pure speculation”.