In mid-February Google filed reexamination requests with the US Patent & Trademark Office for five of Oracle's seven patents-in-suit. Scott Daniels, an experienced patent litigator and partner of the law firm of Westerman Hattori Daniels & Adrian, has just reported that Google filed reexamination requests for the two remaining patents-in-suit yesterday afternoon.
Scott believes that the USPTO will probably decide in May whether to grant those reexamination requests. At that point, or even earlier, Scott believes "Google is quite likely to ask the trial judge to stay the infringement suit" for the duration of the reexaminations.
I guess we can almost set our watches by Google: it's going to carry on with its throw-in-the-kitchen sink approach. What would be more helpful than reexamination requests and the kitchen sink is a countersuit, but Google appears unable to mount one.
A request to stay the case would face a significant challenge: the judge recently gave Google short shrift when it requested an opportunity to file a motion that would have requested the quick dismissal of Oracle's copyright infringement claims. The case is a combined patent and copyright infringement lawsuit and the copyright part is completely unaffected by patent reexaminations, which would be one of several strong arguments in Oracle's favor to let the process continue. Even if Google requested to stay only the seven patent infringement claims (and not the copyright part), Oracle would argue that it is suffering competitive harm from the alleged infringement and therefore needs a swift resolution of the case.
As I explained here, Oracle would have different tactical options if Google succeeded in stalling the case. Quite importantly, it could speed things up by taking the matter to the ITC (where it could assert patents only against Android device makers importing products from outside the US, which they generally do). Oracle could also consider what LG just did to Sony's European PlayStation imports under EU Regulation 1383/2003 concerning customs action against goods suspected of infringing.
While Google continues to defend itself in any way it can (and that's what it should do for all intents and purposes), Oracle is also very persistent and has sharpened its tone in recent court filings, accusing Google of deriving code from the specifications for hundreds of copyrighted Oracle files and of wanting "to throw its licensees and users under the bus". This indicates to me that Oracle is absolutely determined to defeat Google. Control over the monetization of Java in the mobile market is absolutely essential to Oracle's commercial strategy.
Actually, Google should understand Oracle's economic interests at stake. Google uses its control over Android -- via such instruments as the Android "Compatibility Definition Document" (CDD) -- in ways that replicate some of Oracle's Java-related strategies. For example, it doesn't allow Android device makers to replace some of Android's components (although Android is supposedly an open source project) with competing solutions, which has given rise to Skyhook's two lawsuits against Google. In that context, Google has told a Massachusetts court that a right holder is entitled to pursue commercial interests and exercise control. That's just what Oracle wants as well, and that's why it won't let Google off the hook (unless Google makes an offer Oracle can't refuse).If you'd like to be updated on the smartphone patent disputes and other intellectual property matters I cover, please subscribe to my RSS feed (in the right-hand column) and/or follow me on Twitter @FOSSpatents.
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