Google wants judge to dismiss four charges in Oracle suit

Google asked the judge for permission to file requests for summary judgment on four issues

Google is hoping to head off some of the complaints Oracle has made against it by asking a California judge for permission to file summary judgment on four issues.

Google's lawyers filed the requests, which cover an array of issues, late on Tuesday.

In one of the requests, Google asks the judge to rule that should Oracle win, it should only collect damages starting when it first gave notice to Google that it was infringing the patents, in July 2010. According to the so-called "marking statute," if proper licensees of the patents haven't indicated on their products that they are using the patents, a company cannot collect damages from an infringer until the company sends notification of the infringement.

At issue is whether Oracle has labeled any products in the market as being licensed to use the relevant patents. Google refers to an earlier Oracle document where Oracle admits that it isn't aware of any commercial products that are marked as using the patents. As such, Google argues it shouldn't be liable for damages until after July 2010, when Oracle notified it of the infringement. If the judge agrees, the potential damages Oracle could collect if it wins the suit would be significantly reduced.

In another request, Google would like to ask the judge to throw out the invalidity claims of one of the patents because it says that Sun broadened the patent's scope improperly. Google claims that Sun, which created Java and related patents that are now owned by Oracle, broadened the patent after a two-year limit during which applicants are allowed to broaden the scope of a patent.

Google would also like the judge to dismiss an Oracle claim that because Google hired four engineers who used to work at Sun, Google can't seek to invalidate the three patents those engineers developed for Sun while working there. While the engineers do now work at Google, they have nothing to do with Android, Google claims. In addition, they in fact didn't work on any aspect of the technologies relevant to the lawsuit while they were at Sun, Google said.

In its final request to file for summary judgment, Google said it hopes the judge will throw out Oracle's claims that Google infringes by supplying Android to foreign companies. Google refers to a Supreme Court decision in a case between Microsoft and AT&T to argue that Oracle can't charge Google with infringement related to foreign companies.

In that same request, Google also makes an interesting request. It said that Oracle can't charge it with contributory infringement because that charge only applies to offers for sale. But since Android, like other open-source software, is offered to customers free of charge, the charge shouldn't be relevant, Google argued.

If the judge were to agree with Google, the decision would have wide-ranging impact, said Florian Mueller, a patent expert who is closely following the case. "There are many patent claims that software can only infringe contributorily, so this finding would do away with a pretty substantial part of the patent problem [that] open source and other free-of-charge software faces," he wrote in a blog post.

However, he thinks it unlikely the judge will side with Google in this argument. Google has already tried to argue that it doesn't make money from Android, apparently discounting the advertising revenue it makes from Android phone users, and the judge has not been supportive of that argument, Mueller noted.

The judge will now decide whether to permit Google to file the actual summary judgments. If he does, Google will file the requests, after which both Oracle and Google will have the chance to file supporting and dissenting documents.

Oracle filed the lawsuit against Google last year in the U.S. District Court for the Northern District of California, charging the search giant with infringing Java patents in Android. A jury trial is scheduled to begin Oct. 31.

Nancy Gohring covers mobile phones and cloud computing for The IDG News Service. Follow Nancy on Twitter at @idgnancy. Nancy's e-mail address is Nancy_Gohring@idg.com

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