I just published a detailed fact check that highlights at least ten major untruths Google's lawyer told the Supreme Court on Wednesday. Over the last 24 hours I received information on what was going on inside the Googleplex about four to five years ago. At that stage, Oracle had won its first Federal Circuit appeal against Google (the one over copyrightability), and the case had become a pure copyright case, as Oracle didn't pursue its patent infringement claims on appeal.
There was a lot of concern on Google's part that they were going to lose the "fair use" retrial. So they were asking themselves what they could do to gain leverage.
In the patent litigation context, the way most disputes between companies of the Oracle-Google type end is a cross-licensing deal: if both sides had "nuclear" patents, "mutually assured destruction" would ultimately solve the problem.
I know from a first-rate Google source (which I must protect and which contacted me through non-Google channels) that Renny Hwang, by now Google's patent litigation chief but then already on this case, conducted a search for patents that Google could use to countersue Oracle.
The criteria that Mr. Hwang defined were the following four:
They had to be capable of inflicting serious damage.
They had to target Oracle's core business, not just one of the various lines of business Oracle had acquired over the years (such as the MySQL open source database).
They absolutely positively had to be no search patents, even though Google had identified at least four search technologies in Oracle's offerings that it could have attacked. Google's strongest patents are in search--but with Google being a monopolist in that market, it couldn't seek injunctive relief over search patents without serious antitrust implications. The latter is my explanation--my source just told me that search technologies were off limits, and antitrust is a plausible reason.
They had to be homegrown as opposed to patents acquired from the likes of IBM. It would have looked bad in the eyes of a judge and, especially, jury if Google had countered litigation over Sun's homegrown IP with patents acquired from third parties.
It turned out Google didn't own any patents that would have met all four criteria at the same time. Therefore, they didn't bring a countersuit.
What my source doesn't know for sure is whether Google was going to sue right away (possibly delaying the retrial by persuading Judge Alsup to consolidate all claims, in which case Google would have told the jury "look, they also infringe on our rights") or, which I actually consider more likely, would firstly have threatened Oracle with a countersuit in an effort to work out a settlement.
I've been able to verify that my source is indeed a person who at the time held a position with Google in which the source would have been likely to be in the know. I try to be careful about "inside baseball" except when it's too relevant not to share with you, my esteemed readers. Earlier this year I broke the news on an EU-ordered patent/antitrust mediation effort between Nokia, Daimler and many of the world's leading automotive suppliers failing. No one has been able to find out who my sources were, but the accuracy of the information was subsequently confirmed.
I wish to reiterate, and elaborate on, something I said in my previous post (the fact check): I have my longstanding positions on this dispute, but there are other contexts, such as the ongoing Epic Games app distribution antitrust cases, in which I believe I'm more balanced than others who would simply blame Google for all sorts of things. Google does many good things, and I actually supported Google's core positions on EU copyright reform last year (in blog posts and by speaking at a couple of demonstrations, including the largest one of all those anti-Article-13 demonstrations). Also, in 2014 I expressed positions during an Apple v. Samsung trial that were definitely closer to Google's than Apple's. In fact, Google paid for the lawyers who successfully defended Samsung against two of Apple's patents-in-suit. And even in connection with Oracle v. Google, I said I wanted Google to win cert, though I was hoping for SCOTUS affirmance unlike everyone else who supported Google's petition.
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