Google’s Android operating system infringes on two patents owned by Oracle, according to Stanford professor John Mitchell, an expert witness hired by Oracle in the ongoing court battle over Android and its use of the Java programming language.
With its case, Oracle claims that Android steps on two Java-related patents — U.S. Patents 6,061,520 and RE38,104 — and, yes, Mitchell agrees. The Stanford academic took the stand on Wednesday during the patent phase of the trial that pits Oracle against Google, and he was paid by Oracle.
During the trial — which is now into its fourth week — Judge William Alsup has chided both Google and Oracle for calling paid witnesses who seem predisposed to completely agree with their arguments.
Oracle sued Google in August of 2010, claiming that the search giant violated both its copyrights and its patents in building a new version of the Java platform for Android. Rather than license the Java platform from Sun, Google created its own virtual machine — known as Dalvik — for running applications written with the Java programming language.
On Monday, the jury decided that Google infringed on Oracle copyrights covering the overall structure, sequence, and organization of 37 of Java’s application program interfaces (APIs) — software that lets Java programs talk to the Java platform on PCs, smartphones, and other devices. But it was unable to agree on whether Google’s use of the copyrighted material constituted fair use under the law. Google immediately moved for a retrial, arguing that you can’t decide on infringement without deciding on fair use, but Judge William Alsup has yet to address this.
In the meantime, the trial has proceeded into its second phase, which addresses Oracle claims that Google also violated its patents.
U.S. Patent RE38,104 — aka ’104 — describes a “method and apparatus for resolving data references in generated code.” Basically, it covers a way of improving the software compilation — i.e., the process of translating programming code into an executable application. It uses “symbolic references” to identify data during compilation rather than numeric memory locations. Google argues that Dalvik does not use symbolic references, whereas Oracle says otherwise.
The second patent –’520 patent — describes a “method and system for performing static initialization,” a way of consolidating classes of files so that virtual machines execute less code than they otherwise would. Oracle claims that Google uses “simulated execution” with Dalvik, whereas Google says it merely parses files.
Taking the stand on Wednesday, John Mitchell spent the better part of the afternoon taking questions from Oracle’s lead counsel Mike Jacobs and walking the jury through extensive diagrams and software code in an effort to show that Google has indeed infringed on these two patents. Mitchell also discussed a number of tests he ran on the Android code prior to the trial, saying that these prove infringement.
Although Mitchell is paid by Oracle, the jury has been instructed to view his testimony as fact. Google will cross-examine Mitchell on Thursday, and after Oracle rests its case, it will have the chance to call its own paid expert witness.
To prove infringement, Oracle must show that Google was “willfully blind” of Sun’s patents when it developed the Dalvik virtual machine. Earlier on Wednesday, Andy Rubin, who oversees the Android project, took the stand, and Jacobs asked if he was aware of Sun’s Java patent portfolio. “As an engineer, you shouldn’t study someone else’s invention when you’re trying to come up with your own,” Rubin said.
Jonathan Schwartz, Sun’s former CEO, testified during the copyright phase of the trial, but Oracle has asked that the judge prevent him from taking the stand during the patent phase. With his previous testimony, he said that although Sun didn’t like that Google had built Android, he — as CEO — did not believe Sun should take legal action against the search giant.
On Wednesday, in an attempt to challenge Schwartz’s testimony, Oracle called Jonathan Sutphin, a former Sun executive who reported to Schwartz. Oracle lawyer Mike Jacobs asked him whether Sun ever made a definitive decision not to sue Google. “Not that I’m aware of,” Sutphin answered.
Google’s Robert Van Nest countered by showing that Schwartz was the ultimate decision maker at Sun, not Sutphin. “Other than the board, he was the highest-ranking official at the company?”
“Yes,” Sutphin answered.
While at Sun, Schwartz published a blog post espousing his support for the new platform. Oracle has pointed out that this is just a blog post, not a legal or official document. But in questioning Sutphin, Google’s Van Nest pointed out that typically, public companies must notify the SEC of public statements from their CEOs and that Sun had done so with Schwartz’s post. The implication was that the blog post was official.