Oracle, Google, and the Open Invention Network

Speaking of patent lawsuits – somebody pointed out to me that both Oracle and Google are members of the Open Invention Network. This struck me as odd – doesn’t the OIN license require you to promise not to assert your patents against Linux systems? And, uhm, isn’t that kind of what Oracle is doing right now? Well, yes, they might be suing a Linux System – but they’re not suing a Linux System as defined by the OIN.

As we all know, Oracle is suing Google over parts of the Android mobile operating system. Oracle claims that Google is violating some of its Java-related patents, but with both Oracle and Google being part of the Open Invention Network, it would seem that Oracle is actually violating the OIN license they clearly signed.

The relevant part of the Open Invention Network license agreement is section 1.2, quoted in full below (emphasis mine).

1.2 Subject to Section 2.2 and in consideration for the license granted in Section 1.1, You, on behalf of yourself and your Affiliates, (a) grant to each Licensee and its Subsidiaries that are Subsidiaries as of the Eligibility Date a royalty-free, worldwide, nonexclusive, non-transferable license under Your Patents for making, having made, using, importing, and Distributing any Linux System; and (b) represent and warrant that (i) You have the full right and power to grant the foregoing licenses and the release in Section 1.4 and that Your Affiliates are and will be bound by the obligations of this Agreement; and (ii) neither You nor any of Your Affiliates has a Claim pending against any Person for making, having made, using, importing, and Distributing any Linux System.

It would seem that this means Oracle can’t actually sue Google, since, like it or not, Android is a Linux system. So, when I was reading this license, I was a tad bit baffled – this all seems pretty clear, so why hasn’t anyone pointed this out yet? Usually, that means I’m simply wrong, so I dug a little further, and as it turns out, yes, I’m wrong.

The key here is the definition of a “Linux System” as employed by the OIN. This definition reads:

“Linux System” – shall mean a Linux Environment Component or any combination of such components to the extent each such component is (i) generally available under an Open Source License or in the public domain (and the source code for such component is generally available) and (ii) Distributed with, or for use with, the Linux Kernel (or is the Linux Kernel).

Great. So what is a Linux Environment Component?

“Linux Environment Component” – shall mean any of the software packages whose released source code shall be identified on the OIN® website, or a Predecessor Release or Successor Release of any of such packages, including bug fixes and error corrections thereto.

And here’s the list of components. As you can see, Java is clearly not a part of that, nor is Harmony or the Dalvik VM. As such, Oracle is free to sue Google over Java without violating the OIN license. Conversely, this means the OIN will not come to Google’s rescue either.

This isn’t a huge deal – it’s just something that made me wonder, and I figured I’d share it with all of you.


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