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Oracle mobile Java licensing suit boomerangs

Breach-of-contract allegations fly

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Oracle and a hot-selling Java mobile software maker have fired lawsuits at each other over who controls Java - and at what price.

Oracle and Myriad Group have filed dueling suits in the US, both alleging unfair competition and breach of license agreements, among other charges.

Both suits were filed on December 10, with the Myriad's suit disclosed in a slightly confusing Bloomberg article. You can read both companies' claims here and here (warning: PDF).

Myriad claims that first Sun Microsystems and now Oracle - who bought Sun earlier this year along with the rights to Java - breached the company's right to a Java Test Compatibility Kit (TCK) under fair, reasonable, and non-discriminatory (FRAND) terms.

A Java licensee since 1995, Myriad claims Sun engaged in unfair competitive practices by not granting it a FRAND license under the Java Community Processes' (JCP's) governing agreement, the Java Specification Participation Agreement (JSPA).

Myriad says it was forced to license Sun's HotSpot reference implementation of Java along with the accompanying TCK at a cost to the company since 2004 of $120m and customers overcharged $100m.

Myriad claims it's a global leader in mobile technology, with its mobile browsers, widget, messaging, and other mobile platform technologies shipping with more than 3.7 billion applications on more than 2.2 billion phones.

Myriad is asking the court to force Oracle to honor a perpetual royalty free license to the TCKs, ban the company from collecting royalties, provide access to the Java TCKs, and stop the assertion of IP rights in a way that prevents Myriad from proving its Java is compliant. Myriad's also seeking a "disgorgement" of the $120m plus damages.

Over to Oracle, who's also claimed there's been a breach of agreement, along with unfair competition and infringement of Oracle trademarks and copyright. Oracle lodged its case on the other coast, filing with a court in the Northern District of California.

Oracle focused on Sun's community and commercial licenses and the fact that- according to Oracle - Myriad continued to use its old TCKs and ship product as Java compliant despite the expiration of a Master Support Agreement on June 29, 2010.

By continuing to ship Java products, Oracle claims Myriad is competing unfairly, infringing on its copyrights, and it claims that Myriad can no longer use the Java brand. Oracle also claimed that Myriad owes $3.5m in royalties under various commercial licenses, with the company being guilty of "deliberate and willful failure to pay" these royalties.

Oracle is seeking damages of more than $150,000, and it wants Myriad to destroy any and all TCKs it might be using to test and certify its implementation of Java.

Myriad's case ties into the simmering dispute between Oracle and Google – not to mention to dispute between Oracle and the Apache Software Foundation (ASF). Oracle has refused to grant Apache a Java for the TCK to certify its independent implementation of Java Standard Edition, called Project Harmony. A version of Harmony's used by Google's Android in the phone operating system's Java Virtual Machine (JVM) called Dalvik.

Apache has resigned from the JCP to protest the restrictions Oracle placed on the TCKs, after fellow JCP members except Google and one independent voted in favor an Oracle Java roadmap without forcing any changes to the accompanying Java license. Apache also claims Oracle has broken the JSPA by not granting its independent Java implementation a license.

Meanwhile, Google is being sued by Oracle, who alleges that Android violates the Java patents it bought with Sun.

It's possible Myriad has sprung into action to help prove a test case for Google and Apache against Oracle in the US courts, and settle the issue of over the JSPA and field-of-use restrictions imposed on where and how Java is used and licensed. The field of use restrictions pre-date Oracle, having started under Sun but have now passed to Oracle.

Adding some conspiracy theory spice is the fact Myriad offers something called Dalvik Turbo, that it calls "a seamless, high performance replacement for the Android Dalvik Virtual Machine increasing application execution speed by up to five times.

It also offers Myriad J2Android, which Myriad calls "a simple and efficient converter for MIDlets" that lets "phone manufacturers, mobile operators and mobile application stores can bring thousands of existing Java applications to Android devices."

Intellectual property activist Florian Mueller has pointed out here that Myriad is represented by law firm Potter, Anderson, Corroon and King and Spalding. The latter is also defending Google against Oracle's on Android.

Rating Myriad's chances, Mueller pointed out FRAN would not necessarily have granted Myriad unfettered access to the TCKs its fighting over. "Field-of-use restrictions come with many FRAND licenses, so one cannot claim categorically that such restrictions constitute a failure to honor FRAND licensing commitments. It really depends on the specifics of the case," he said.

He said Myriad, Google, and Apache are likely tackling Oracle from different directions, to wear down its position.

"There's Google, which claims as part of its defense against Oracle's patent infringement suit that it's entitled to do what it does. There's Apache, an open source entity. A non-profit that represents a part of the community. And now there's Myriad, which raises unfair competition issues and claims that it has suffered economic harm," Mueller said. ®

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