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E-Commerce Times: Google and Sun on Java Arrangement

April 25, 2012; ECT News Network quotes Michael J. Feigin, Esq.

Schmidt: Sun Was Warm to Java Arrangement

Schmidt: Sun Was Warm to Java Arrangement

Google Chairman Eric Schmidt told a court that the former leadership of Sun Microsystems never objected to the way Google used Java code. He appeared in court to defend his company against charges leveled by Oracle, which bought Sun two years ago. Oracle has sued Google, claiming the Android maker misused Java code in the creation of its mobile platform.

Google (Nasdaq: GOOG) Executive Chairman Eric Schmidt defended his company's actions regarding Java and Android as he took the witness stand Tuesday in Google's ongoing trial, in which the company stands accused of misusing Java programming code in the development of its mobile operating system.

Oracle (Nasdaq: ORCL), which acquired rights to Java when it bought Sun Microsystems in 2010, has charged Google with infringing on Java patents and copyrights for use in the Android software. Oracle claims that Google uses Java application program interfaces without a license, but Google says it only uses parts that are open to anyone.

During testimony, Google counsel presented e-mails between Schmidt, then CEO of Google, and Scott McNealy, who was at the time Sun's CEO. The correspondence indicates that there was talk between the two about a possible partnership when Android engineers realized Java was the best option for building the mobile operating system. A deal between the two companies fell through because of "control" issues, according to Schmidt, and a license or other agreement about Java's use was never made.

Schmidt said Tuesday that because of his history at Sun Microsystems -- he was CTO there when it invented Java -- he remained close to the company, especially to Jonathan Schwartz, another former Sun CEO. He said that in chats with Schwartz, the Sun captain never took issue with Google's use of Java.

Neither Google nor Oracle responded to our requests for comment on the case.

Nothing in Writing

Schmidt attempted to argue Tuesday that although there was no written or legal agreement between Google and Sun, and then Oracle, there existed an understanding between the companies that Google was free to use Java. That might be true, said patent and trademark attorney Michael Feigin, but when it comes to a court case -- especially one as high-stakes as this one -- sometimes those arguments don't get very far.

"I think it's an interesting argument," Feigin told the E-Commerce Times. "Mainly because it's very believable, probably true, and not very legalistic."

Even though Schmidt reportedly didn't have answers to some of the more technical aspects of how Google used Java code, he did admit that Google was using the code. The testimony sounded more like that of an engineer than that of a company executive, said Feigin.

"Lawyers usually don't want their clients to admit anything they don't have to, but in this case, one would have to say, 'why would Eric Schmidt being lying, if he could have lied better?'"

Possible Outcome

Google's current CEO Larry Page and Oracle head Larry Ellison have already testified in the case. Both men reportedly stumbled over some of the more technical aspects of the questioning. Ellison in particular was not shy about expressing his well-documented harsh feelings toward Google. Though court decisions are supposed to be made based on the law alone, brash behavior like that is frowned upon in trial, and could work against Ellison and Oracle, according to Stephen Wu, partner at Silicon Valley law firm Cooke Kobrick & Wu.

"The demeanor of witnesses, especially if they're coming off as arrogant or smug, could make a jury or judge psychologically less inclined to focus on the facts, and might subconsciously influence someone," Wu told the E-Commerce Times.

Schmidt was more calm on the stand, according to media accounts of the trial. Since he argued that there was an understanding between the companies about the use of Java, the case will probably rest upon whether or not Google can prove there was an implied license.

"Schmidt would have to show evidence that Sun impliedly consented to use of the patent," William Galkin, Internet attorney at Schwell Wimpfheimer & Associates, told the E-Commerce Times. "However, even an implied license can be subject to termination."

Had Sun remained independent, said Feigin, this fight might never have happened. That could actually help Google if it can prove that Sun never pressed Google for payment or a license.

"A written agreement would be best, but if Sun knew about Google's use of Sun's code and did nothing, that may be seen as acquiesce," he said. "It's not uncommon for a new owner to come along and try and get their intellectual property in order. Sun did not have nearly the controls over the Java code as Oracle would like. Oracle is very protective of its code and has a very different culture than Sun."

The two sides could settle, then, with some sort of cash payout or an agreement to move forward with a licensing deal. However, Wu said that with the high stakes and the nature of the trial so far, it's likely this is going to be a fierce courtroom fight.

"If they don't settle, the verdict will make that decision, and right now it looks like that's where we're headed," he said.

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