Google Inc's Android mobile platform has not infringed Oracle's patents, a California jury decided in a high stakes trial fought by the two Silicon Valley giants over smartphone technology.

On Friday afternoon by local time, Judge William Alsup, the federal judge presiding over the Oracle v. Google lawsuit in the Northern District of California, entered a judgment as a matter of law (JMOL) overruling the jury (as well as Google's opposition to an Oracle motion for JMOL) with respect to eight decompiled Java files.

So Oracle has now filed a motion asking for a postponement of phase three of the trial, the damages phase. It would like a new jury, too. It wants to wait to calculate damages until after the judge decides whether APIs are copyrightable, so it can add the 37 API files into the mix for damages, if they are. Maybe then it would have a prayer of getting some money.</p><p>

In short, Oracle woke up and realized it's in a pickle of its own making. It was too clever by half, and now reality has struck. It clearly is worried that if they go to the damages phase now, it will gain a big fat zero in damages. It should have thought of that before it asked for infringer's profits, but there you are.

It's hard to imagine another, similar case on the scale of Oracle versus Google, so it's remarkable that an almost identical one came to resolution in Europe at almost the same time. SAS Institute sued World Programming for copyright infringement in what seems like a much more clear-cut case than Oracle versus Google. World Programming copied the SAS programming environment with the intent of direct competition, yet the court did not find against World Programming.</p><p>

Although the case has nuances, the court was clear that although software itself could be copyrighted, its externalities -- the function it performs, the programming interfaces it exposes, and the data structures it uses -- cannot be. This is entirely reasonable. Without such a division, interoperable technology markets would be impossible.

With this paradoxical partial decision, the jury has left the case very much in the air, and Google has already moved for a mistrial.</p><p>

On Monday, as the Google-Oracle case entered its fourth week, a jury ruled that Oracle has proven that Google infringed the overall structure, sequence, and organization of copyrighted works of 37 APIs used by the Java platform. In building Android, Google created a new version of the Java platform known as the Dalvik virtual machine, and this mimicked the Java APIs, or application programming interfaces, which are essentially a way for a Java application to talk to the platform.</p><p>

But the jury was unable to reach a decision on whether Google’s Java clone constituted “fair use.” A fair use decision would let Google off the hook.

In Dan Farber's recent <a href="http://news.cnet.com/8301-1035_3-57423538-94/oracle-google-trial-puts-ex-sun-execs-on-opposite-sides/?tag=rb_content;contentBody">article on CNET titled "Oracle v. Google: Ex-Sun execs on opposite sides"</a> he got my position on the case totally backwards and totally misinterpreted my comments. Just because Sun didn't have patent suits in our genetic code doesn't mean we didn't feel wronged. While I have differences with Oracle, in this case they are in the right. Google totally slimed Sun. We were all really disturbed, even Jonathan: he just decided to put on a happy face and tried to turn lemons into lemonade, which annoyed a lot of folks at Sun.

The code used to run Java applications on Google’s Android operating system is “completely different” from the code that underpins Oracle’s Java platform, according to an expert witness called by Google in its ongoing court battle with Oracle over Android and Java.</p><p>

“The implementation code in Android is completely different than the implementation code in Java,” Duke University computer science professor Owen Astrachan said on Friday, though he added that the two use the same “method signatures,” code that defines the inputs and outputs for part of a computer program.</p><p>

...Astrachan’s testimony contrasted sharply with that of Stanford University processor John Mitchell, who was originally called by Oracle on Monday and returned to the stand on Friday. Mitchell said that at least in some cases, Google must have copied code from Oracle’s Java platform. “I don’t think there is any way [Google] could have come up with it on their own,” he said, when asked if he thought Google copied code for the Java application programming interfaces, or APIs.</p><p>

Google says Dalvik is a “clean room implementation,” meaning it was built from scratch. But Mitchell disagreed. “Whoever inserted that code into the codebase had access to it,” he said. “This wasn’t a clean room implementation.”

Federal Judge William Alsup has rejected Oracle’s attempt to reincarnate a dead Java patent in its attempt to prove that Google stole its intellectual property in building the Android mobile operating system.</p><p>

“Oracle’s argument that the patent ‘trial’ has not yet started is wrong,” Alsup’s ruling, filed late Wednesday, <a href="http://www.wired.com/wiredenterprise/wp-content/uploads//2012/04/Alsup-Ruling1.pdf">read</a> (PDF). “Oracle will be required to stand by its word and live with the dismissal with prejudice.”

So, Google was sincere in wanting to work with Sun. Sun? Apparently it had a more complicated position.</p><p>
But reading the exhibits, you see that an independent implementation was always viewed as possible by Google, Lindholm even mentioning one possibility, just not ideal. In fact, apparently someone in 2010 told Safra Katz of Oracle that maybe Google would just use something else, and this apparently seemed to disturb her, as on page 7 it says the "threat" to move off Java "hit her hard". Of course Google has the technical ability to do pretty much whatever it wants to take on. They're designing driverless cars and how to mine asteroids. I mean. Really. Replacing Java would be annoying but not impossible.</p>p>

But part of what Google was trying to make happen in 2009, as you can see on page 30, was getting Sun to "get Java more fully open sourced" which, by then was seen as urgent in that they thought Sun was "going to fail sometime soon." Why did Google care? Because, as one email that year in the same thread pointed out, Google was already highly invested in Java.

As an independent analyst and blogger, I will express only my own opinions, which cannot be attributed to any one of my diversity of clients. I often say things none of them would agree with. That said, as a believer in transparency I would like to inform you that Oracle has very recently become a consulting client of mine. We intend to work together for the long haul on mostly competition-related topics including, for one example, FRAND licensing terms.</p><p>

We've known each other ever since I vocally opposed Oracle's acquisition of Sun Microsystems (not because of Java), but that's history as I fully respect the European Commission's clearance decision and the subsequent closing of the deal.

In the end it was a search that let Google down.</p><p>

The company suffered a setback in its patent dispute with Oracle last week when a U.S. judge denied Google's request to keep an internal Google email out of the case record. The email, written by a Google engineer, could suggest to a jury that Google knew it needed a license to use Sun's - now Oracle's - Java technology in Android.

Last week, Magistrate Judge Paul S. Grewal asked both parties to give settlement talks another chance, with a decision required by April 9. Even though they had another week, it must have been clear that a settlement just isn't in the cards.

"Oracle's pleading also contains a very interesting portrayal of Google's Android-related business model and the economic value Android represents to Google, which is pertinent to Oracle's argument that its infringement lawsuit must be adjudicated at the earliest opportunity."