Google may face an uphill battle defending itself in a jury trial against Oracle if some potentially damaging emails are introduced at trial.
Google's defense in its patent infringement battle with Oracle is that the search giant did not infringe-and in particular, did not willfully infringe-Oracle's Java patents. However, new documents that have been made public from early hearings in the case suggest that Google may have pushed on with a Java strategy despite not having secured a license to use the technology in building Android.
If Microsoft's landmark antitrust battle with the government is any evidence, corporate email can serve to help a case, but more often it can come back to bite you. Microsoft certainly saw this, with old emails of executives bragging about cutting off competitors' air supply and whatnot. Now it is Google's turn to see emails turned on them.
According to an AllThingsD report, a 2005 email from Andy Rubin, senior vice president of mobile at Google and honcho of the Android project, sent a message to current Google CEO Larry Page noting that the Android team was making Java central to Android and that Google ought to "take a license."
And in an August 2010 email from Google engineer Tim Lindholm to Rubin, Lindholm wrote:
""What we've actually been asked to do (by Larry and Sergey) is to investigate what technical alternatives exist to Java for Android and Chrome. We've been over a bunch of these, and think they all suck. We conclude that we need to negotiate a license for Java under the terms we need.""
Lindholm would be in a position to know. He was a Distinguished Engineer in Java while at Sun Microsystems, which Oracle acquired in 2010 and gained Java in the bargain. Lindholm also worked as part of the original Java development team at Sun, known as FirstPerson, and he was an original member of Sun's Java Products Group. Lindholm also is very likely one of the individuals Oracle is talking about when it says in its complaint against Google:
""On information and belief, Google has been aware of Sun's patent portfolio, including the patents at issue, since the middle of this decade, when Google hired certain former Sun Java engineers.""
Of course, Google has since hired James Gosling, the father of Java, who has acknowledged that at least one of the patents in the case is his. But Gosling did not join the company until well after this lawsuit had been filed.
Meanwhile, FOSS Patents blogger Florian Mueller first pointed out another potentially detrimental email for Google. The email, another one by Rubin, reads:
""If Sun doesn't want to work with us, we have two options: 1) Abandon our work and adopt MSFT CLR VM and C# language - or - 2) Do Java anyway and defend our decision, perhaps making enemies along the way.""
That email could be read different ways. Is he talking about Java, the open language or the underlying platform for which Google would need a license? If so, why talk of doing it "anyway" or speak of having to defend the decision? Perhaps Google simply did not want to abandon the efforts it had made in Java. And what is to say that adopting Microsoft's Common Language Runtime (CLR) and C# would be any easier or go any smoother for the company?
Oracle, in its complaint, contends that "Google's acts of infringement have been and continue to be willful, deliberate, and in reckless disregard of Oracle America's patent rights."
After reading the emails, U.S. District Judge William Alsup, who is presiding over the case, raised an eyebrow and warned Google that if it is found to have willfully infringed Oracle's patents it will face stiffer penalties.
After reading the last Rubin email, Alsup told Google's attorneys: "You are going to be on the losing end of this document with Andy Rubin on the stand. ... If willful infringement is found, there are profound implications for a permanent injunction. So you better think about that."
Some folks are making hay over a 2007 blog post by former Sun CEO Jonathan Schwartz in which he praises Google for Android. Schwartz said in his post: "I just wanted to add my voice to the chorus of others from Sun in offering my heartfelt congratulations to Google on the announcement of their new Java/Linux phone platform, Android. Congratulations!"
Oracle has since deleted the post.
Meanwhile, at a recent hearing, a Google attorney acknowledged that Google turned down a $100 million deal with Sun in 2006. The attorney said the deal was not specifically about about patents.
For its part, Google needs to find some damaging emails from the Oracle side.