Sun was close to licensing Java patents to Google for $28M

In a court brief related to its battle with Oracle, Google also says the offending code has all been removed in the next version of Android

Google and Sun Microsystems' discussions to co-develop Android ultimately broke down because of disagreements over control of the platform, Google wrote in a trial brief late last week related to its dispute with Oracle.

The document contains a number of details about the development of Android, including that information Sun at one time was near agreeing to license 2,000 Java patents to Google for US$28 million over three years. Oracle bought Sun last year and then filed a lawsuit charging Google with infringing Sun's Java patents and copyright in Android. Google denies wrongdoing.

Although portions of the document are redacted, it says that both Oracle and Sun considered making their own Java phones, which would have competed with Android.

The document also shows that Google was banking on Sun being unlikely to sue, due to the company's expressed policy of asserting patents only for defensive reasons.

Google previously said that it rejected a $100 million offer from Sun to license Java patents.

But it now said the companies were close to agreeing on a lesser figure around a partnership deal to together develop the mobile platform, "realize profits from that platform as each of them saw fit," and cross license intellectual property. That deal would have given Sun "the right to use substantial Google IP," Google said.

Google insists that the payment wasn't just a licensing deal. "By the end of April 2006, though other terms of their partnership remained unsettled, Sun had agreed to accept a payment from Google of $28 million over three years to compensate Sun for the risk of lost licensing revenue that might result from an open source Android platform," Google wrote.

"At that point, negotiations broke down over issues unrelated to money," it continued. "Both Google and Sun wanted greater control over Android's development, with Google wanting to make the platform more open and Sun wanting restrictions that Google viewed as incompatible with open source."

Google went on to argue that because Sun didn't later pursue Google for patent infringement, Google didn't know it was infringing and thus didn't do so willfully. In repeatedly referring to Sun's policy of not pursuing patent infringers, Google appears to back up some critics who have suggested that the search giant knew it was infringing patents but counted on Sun not to pursue it.

"Sun had a long-standing, publicly announced policy of using its patents only defensively," Google wrote in one instance.

The argument that Google didn't know it infringed patents could be a difficult one if a hotly contested email is allowed at the trial. The email, written by Google engineer Tim Lindholm, advised Android's chief that he had investigated technical alternatives to Java but concluded that the company needed to negotiate a license for Java. Google has been trying to prevent the email from being displayed to jurors.

Google also revealed that both Oracle and Sun worked on developing their own mobile phone software.

"Only when Oracle concluded it lacked engineering skills to build its own 'java phone' did it choose Plan B -- this lawsuit," Google wrote. More details about Oracle's plans for a phone may be included in the brief, but if so, they're blacked out.

Google also implied that Sun decided to try to build its own mobile OS after negotiations between the companies broke down. "Sun was forced to abandon its project for a Java based smartphone software stack in the wake of Android's launch, realizing that there was no way to compete with a free product," Google wrote.

Google also said that no offending code remains in the next version of Android, due to be launched on Wednesday. "Only nine lines of allegedly copied code was even enabled on Android devices and all the allegedly copied code has either already been removed or disabled or will be removed from the imminent next release of the Android software," it wrote.

Oracle's trial brief doesn't include much new information, but argues stridently that Google was very aware it was infringing the patents, especially because it had hired over 100 former Sun employees, including four inventors of the asserted patents. "With this large and knowledgeable cast of former Sun personnel in its employ, Google cannot deny that it was aware of Sun's Java intellectual property portfolio and licensing practices," Oracle wrote.

The trial is still set for Oct. 31, but the judge has advised that it's likely to be postponed due to a scheduling conflict in the court room.

Nancy Gohring covers mobile phones and cloud computing for The IDG News Service. Follow Nancy on Twitter at @idgnancy. Nancy's e-mail address is Nancy_Gohring@idg.com

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Tags open sourcetelecommunicationTim LindholmSun MicrosystemsAndroidmobileOracleGoogleintellectual propertycopyrightpatentlegalMobile OSessoftware

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