I am not a patent expert by any means, but it seems that the patent wars are heating up.  On the front burner, it seems to me, is the Oracle vs Google case.

Larry Ellison and Larry Page are due to face off, mano a mano, in a court ordered session, to negotiate a settlement.  Scheduled date is September 19, Magistrate Judge Grewal presiding.  That’ next Monday!  If no agreement is reached additional sessions will take place up to September 30.  If no settlement is reached then it probably will go to trial with a jury.  This is now scheduled for October but may be postponed due to other things on the calendar.

I have never met either Larry, but I have the feeling that Page is more of a hip shooter and Ellison is more of a planner.  In any case there will be supporting casts.

What is likely to happen?  Based on the ‘evidence’ to date, Oracle seems to have a pretty strong case for infringement of the Java patents.  Also hanging over Google’s head are some letters which strongly indicate that the infringement was willful.  My guess is that Ellison will want a fee for all android devices made in the past under license from Google, and all those going forward.  License fees seem to have been going in the five to twenty dollar a unit range.  Ellison will undoubtedly start at the high end but will settle for ten dollars a pop.  Assuming that 200,000,000 android phones have been sold, that’s two billion dollars.  If the infringement is willful, triple damages come into play.  Wow.  That’s six billion dollars, plus more license fees going forward.

Of course nothing is certain.  Google may wish to take their chances in front of a jury but the presiding judge (Alsup) has made it clear that he doesn’t believe that Google has a strong position.  The presiding judge has also made it clear that he wants them to settle.

We have seen Google fold in the Motorola deal.  I think Ellison is probably a better negotiator than Page, but I really don’t know.  I feel that Google has more to lose if the case goes to trial than Oracle has.  Ellison may be willing to cut the price to get the deal done (but not by much, I suspect).  Also, if it goes to trial information may come out which would help Apple in their cases.

It looks likw the Patent Wars are coming to a head.

Oh, by the way, Bosco, the Motorola patents are not in play here.

Alsup also told Oracle that their damages were ridiculous and directed them down to $100M give or take a factor of 3. His guidance is probably an indication of what he sees an appeals court doing to any award. I don’t really care to fight about this. We can just sit back and watch. But you guys should be realistic and take Oracle’s lumps along with Google’s into consideration. Alsup is not going to be the judge who let a knife get stuck through half the smartphone market.

Also, the two batches of patents purchased from IBM in the past two months will come into play in negotiations. Google will simply turn around and sue Oracle over core database technology if they don’t reach a reasonable settlement ($100M give or take a factor of 3). IBM is still pretty peeved about the whole Harmony thing and Oracle’s general stewardship of the Java community and would like nothing more than see Oracle take one in the gut for that.

Bosco (Brad Hutchings) - 17 September 2011 02:02 AM

Alsup also told Oracle that their damages were ridiculous and directed them down to $100M give or take a factor of 3.

Can you provide a link that shows this?  That would mean Java is effectively being licensed for pennies, which would be way out of line with industry norms.

Someone has a selective memory.

Quoted in a Reuters report, US District Judge William Alsup took both parties to task for being unreasonable about the estimated damages. He called Google’s estimate of $0 “ridiculous” and “totally wrong.” Judge Alsup also had some sharp words for Oracle. According to BusinessWeek he said that it was “crazy” to base the damage estimates on the full monetary value of Android itself.

Judge Alsup also questioned Google about the terms of an agreement that the search giant was negotiating with Sun in 2006 regarding Android and licensing. Internal Google messages sent to Andy Rubin during the early stages of Android development indicated that a license was needed in order to proceed with using Java. Other programming languages were considered, but rejected. Google then began negotiating a broad agreement with Sun, which eventually fell through.

Google contends that the terms of the proposed $100 million deal with Sun had nothing to do with patents. According to the search giant, the plan would have involved a complex partnership through which the two companies would fully co-develop the Android platform. The arrangement never materialized, and Google ended up building its own implementation of the Java programming language distinct from Sun’s J2ME.

http://arstechnica.com/gadgets/news/2011/07/judge-blasts-googleoracle-over-damages-estimates-in-patent-dispute.ars

Well Drew, as I read that, it’s pretty consistent with him having a just number in his mind that will hold up on appeal and not make him look like a kangaroo court ringmaster. His action in bringing the CEOs together for a series of tête-á-têtes before proceeding to trial is pretty consistent with finding a settlement and diffusing the situation.

Like I said, we’ve all stated our opinions. Now get your popcorn and sit back and see what happens.

Bosco (Brad Hutchings) - 17 September 2011 02:02 AM

Alsup also told Oracle that their damages were ridiculous and directed them down to $100M give or take a factor of 3. His guidance is probably an indication of what he sees an appeals court doing to any award. I don’t really care to fight about this. We can just sit back and watch. But you guys should be realistic and take Oracle’s lumps along with Google’s into consideration. Alsup is not going to be the judge who let a knife get stuck through half the smartphone market.

Also, the two batches of patents purchased from IBM in the past two months will come into play in negotiations. Google will simply turn around and sue Oracle over core database technology if they don’t reach a reasonable settlement ($100M give or take a factor of 3). IBM is still pretty peeved about the whole Harmony thing and Oracle’s general stewardship of the Java community and would like nothing more than see Oracle take one in the gut for that.

Damages are an issue only if the case goes to trial.  In the negotiations Oracle will say this is what we want in order to settle, and by the way if you don’t settle we will also do this and that and you will feel a lot more pain.  This is essentially what Motorola did to Google, and they folded.  I think a similar result may ensue here.

Don’t ask me what the this and that are.  They are things that Oracle has up its sleeve.

Bosco (Brad Hutchings) - 17 September 2011 09:29 AM

Well Drew, as I read that, it’s pretty consistent with him having a just number in his mind that will hold up on appeal and not make him look like a kangaroo court ringmaster.

I read that as a judge being judicious. Both sides threw out ridiculous numbers and he called them out on it.

The point of quoting that article was that it clearly shows that your earlier statement was incorrect. I don’t know if you mis-remembered, misunderstood or intentionally misspoke. The judge made absolutely no reference to any dollar amount.

Google claims the $100M number referenced had nothing to do with patent negotiations and it’s not clear if that was rejected by Sun or Google. I have no idea where “factor of 3” came from.

Bosco (Brad Hutchings) - 17 September 2011 02:02 AM

Alsup also told Oracle that their damages were ridiculous and directed them down to $100M give or take a factor of 3.

My statement didn’t say the judge used the number. But like if the judge was walking east in the general direction of the Pick’n'Save, one could say that the judge was walking toward the Pick’n'Save. And then you’d bitch at me because he never said he was going to the Pick’n'Save.

Consider the $100M give or take a factor of 3 my prediction. Put yours out there explicitly. It will be good for a laugh when all is settled.

The ramifications of this case are wide and deep.

As negotiations begin, question 1 is whether Google illegally used Oracle’s patents.  Without a judgement, Google has got to believe that they did and will lose on this point if the case goes to trial.

Question 2 is what happens if Google and Oracle do not reach an agreement.  The case goes to trial and Google will probably lose.  Oracle will then ask for an injunction to stop Android from being distributed, which will probably be granted. 

Oracle may also ask for damages, not to be confused with license fees.  Damages would be assessed by the court. and if the violation is found to be willful can be multiplied by 3.  The evidence that this is true seems pretty clear, and it also seems pretty clear that Google cannot prevent this from being used in a jury trial although they have tried very hard.

As an aside, Apple is learning a lot about Google’s inside mode of operation, and may be able to put this to use in their current and future litigations.  Andy Rubin’s tactics have been exposed.

Question 3.  What will Google do?  Pay a lot of money?  Go out of the mobile business?  Try to postpone everything by appealing?

Of course, Google may not lose, but during the negotiations Google must be aware that their position is weak.

I believe that the probability of a settlement is high.  It is possible that the terms may not be released, however.

Bosco (Brad Hutchings) - 17 September 2011 01:47 PM

My statement didn’t say the judge used the number.

One more time.

Bosco (Brad Hutchings) - 17 September 2011 02:02 AM

Alsup also told Oracle that their damages were ridiculous and directed them down to $100M give or take a factor of 3.

That doesn’t say anything about Brad speculating about what might be settled out of court.

<shaking head in disbelief>
I gotta hand it to you, Brad, you’re one of the best trolls I’ve ever come across. Despite your consistent non sequitur leaps of illogic, you still draw people (myself included) into these inane “you said this” - “no I didn’t” exchanges.

Perhaps in the spirit of perfectly correct English I should have used the word “toward” instead of “to”. But still, to pick that nit, even after I clarified, you’ve got to have one hell of a burr aching your arse.

Where’s your prediction Drew Bear. Mine’s out there. Come up with one and put your name on it.

Here is Foss’s latest interpretation of where things sand and what could happen going forward.

http://fosspatents.blogspot.com/

Bosco and ither Google.Android apologists please take note.

Take note of what? A former Microsoft lobbyist (Mueller) who has been routinely and fully discredited by the likes of groklaw for essentially astroturfing the open source space? A guy who has convinced regular TMO commenter Nemo that Android is a derivative work of Linux when Linus himself has said it was a plain braindead suggestion?

I’ll take note of the final result. Mueller is a tool. Quoting him now to support your views will leave a stench on you for years to come.

Bosco (Brad Hutchings) - 18 September 2011 02:41 PM

Take note of what? A former Microsoft lobbyist (Mueller) who has been routinely and fully discredited by the likes of groklaw for essentially astroturfing the open source space? A guy who has convinced regular TMO commenter Nemo that Android is a derivative work of Linux when Linus himself has said it was a plain braindead suggestion?

I’ll take note of the final result. Mueller is a tool. Quoting him now to support your views will leave a stench on you for years to come.

Enough of the adolescent, playground retorts.

So Florry provides a narrative you want to hear. I get that. That’s why I listen to the Trojan pre-game and post-game instead of SportsCenter on USC game days. But if you’re going to use him as a source, a very fair challenge to your beliefs is whether he is a worthy source.

Here is what Florry does. He spits out selective facts to drive particular narratives. His overriding Microsoft funded theme is that the purest, non corporate sponsored and vetted open source has IP problems. Aside: so does all commercial software, but the bigs have patent stashes to use in retaliation that give them plenty of license to infringe. Then he picks some wedge event, and loads up his presentation of facts to support an outlandish, completely “anti open source” outcome. He is repeating a formula he was paid by Microsoft to push in the SCO lawsuit days. Back then, I was one of those people who bought into his narrative. And then it didn’t hold up.

Case in point is that German ban on Galaxy Tabs. Mueller created the expectation that the ban would apply throughout Europe. The actual outcome is that it doesn’t even apply in Germany, as Samsung can ship them through other European subsidiaries so long as the German one doesn’t touch them.  Meanwhile, you Apple fanboys are proud of Apple’s giant accomplishment of having invented the rectangle.

Hopefully, we’ll be able to recap the Google/Oracle thing in a few months. It is a sure bet that if Florry is telling you that Larry Page will be sentenced to hell and have his nuts cut off for “stealing” Java from Oracle, the actual outcome will be murky with a giant Android peeing on Ellison’s feet.

The noose is closing.