posted by Thom Holwerda on Tue 26th Jul 2011 11:27 UTC
IconAnd the patent and lawsuit related news just keeps on coming. Sorry. Anywho, this one's a doozy. As we all know, Oracle - led by Larry Elison, who just so happens to be one of Steve Jobs' best friends, but this is of course entirely coincidental - is suing the crap out of Google over the use of Java in Android, claiming not only patent but also copyright infringement. Well, when Sun was still on its own, its CEO, Jonathan Schwarz, publicly and explicitly endorsed Android's use of Java in a blog post - a post that has since been removed by Oracle. But, as we all know, the internet never forgets.

The original blog post was dug up by Groklaw, and in it, Schwarz, back then the CEO of Sun, congratulates Android with its use of Java technology. "I just wanted to add my voice to the chorus of others from Sun in offering my heartfelt congratulations to Google on the announcement of their new Java/Linux phone platform, Android. Congratulations!" Scwarz wrote November 5, 2007.

"I'd also like Sun to be the first platform software company to commit to a complete developer environment around the platform, as we throw Sun's NetBeans developer platform for mobile devices behind the effort," he continues, "We've obviously done a ton of work to support developers on all Java based platforms, and were pleased to add Google's Android to the list."

"With friends like Google and Red Hat, it sure seems like the momentum behind Java's on the rise..." he concluded.

Now, what does this mean? Well, obviously this isn't in any way a contract or a patent license, but it could be used for something else: estoppel. Estoppel is a funny word which - very crudely stated - comes down to past actions of the accuser limiting the scope of the claims made against the defendant. As Groklaw explains:

I make a statement. (Congratulations, on incorporating my company's technology into yours even without a license to my patents.)

You hear the statement, and in reliance on the message the statement conveys rely on the statement to your detriment. (You incorporate the technology and, as a result, allegedly infringe the patents.)

I then try to enforce the patents against you but am barred from doing so under the doctrine of estoppel. (I cannot now deny I encouraged the infringement in the first place or at least led you to believe it was okay.)

This is not an easy argument to make, Groklaw notes, but Google has already added it to the Oracle v. Google case. The fact that Oracle deleted the blog post while the trial is still ongoing certainly won't play to the database vendor's compliment; judge Alsup already blasted Oracle for doing something similar earlier on in the case, using things like trade secrets to keep evidence from the public eye.

"The big companies do not own the US District Court. When it comes to a public hearing I'm not going to resort to Morse code to figure out what you are saying," Alsup told Oracle's lawyers, "This is not a wholly-owned subsidiary of Oracle. Nobody is going to put my word under seal even if I refer to your secret documents."

All in all, it would appear Oracle's case is growing ever weaker, no matter how many blog posts to the contrary Florian Mueller keeps churning out.

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