With the disclaimer that I'm the author of the linked piece, I'm not sure why the comment is silly. Dalvik is indeed at the heart of Oracle's claims, but many casual followers of its development are operating under the assumption that Google's cleanroom reimplementation shields it from patent claims.

An interpretation that is obviously false, as Dalvik was intended to circumvent copyright and - perhaps - trade secrets, not patents. But it's something you hear with some frequency, so spelling it out in clear terms seemed worthwhile.

No?

I guess I can see where you're coming from vis-a-vis wanting to spell it out. But wouldn't it make more sense to emphasize that creating Dalvik is exactly what put Google in position to receive this suit? It feels like you are suggesting that there was some intent to avoid a patent suit when Google decided to create Dalvik rather than license the JVM but that it didn't work. When in reality, creating Dalvik is what brought about the suit in the first place. If Google wanted to safely avoid a suit, they would have just licensed the JVM like everyone else right?

You need to understand the difference between patents and copyrights.

Copyright infringement and trade secrets abuse (where exposure could have happened) can be avoided by clean-rooming original works. That's what it means to clean-room - re-implement without being directly affected by the original.

Patent infringement can not be avoided in this fashion.

Hence, Google had choices:

1. License JVM, and probably pay some fees not compatible with their "free and free" android plans.

2. Use JVM without licensing and get nailed for copyright infringement.

3. Clean-room their own VM and risk a patent fight. At the time Sun was known for not starting up fights (Shwartz let on this in a recent interview), so it looked like a good plan.

4. Go a completely different route. Still risk patent infringement.

Wait, I never suggested that software patents could be avoided by cleanroom implementations. And I don't see how anything I've said has anything to do with the difference between patent infringement and copyright infringement. But your laying out of Google's options is very useful.

My point is just that it's a little weird to say that Dalvik couldn't protect Google from a patent suit, because building it created the suit. It's a little like saying that playing Russian roulette can't protect you from getting shot.

But I've belabored this point enough I think.

Just because a suit is created doesn't mean it has merit.

What he's saying is that clean room reimplementations (Dalvik) side-step copyrights, but not patents. The fact that it was created to circumvent something, just not this particular thing, could lead to a lot of confusion for a lot of less savvy readers if this wasn't cleared up.

I never said the suit had merit, so I'm not sure what your first comment is referring to.

But your second point is valid, and I agree that some things needed clearing up. I just thought the way that particular comment was worded wasn't helping that much.

Going back to my Russian roulette analogy, of course playing Russian roulette won't protect you from getting shot. It's the fact that you're playing Russian roulette in the first place that is putting you at risk of being shot. If people are confused about that, then it's probably best to educate them about how playing Russian roulette can result in you getting shot.

Bringing the analogy back, I feel like it would have been more useful to just educate people about the fact that creating Dalvik is what directly led to this suit and for what reasons.

Let me restate the point differently, maybe it will make more sense that way.

While many people think that Dalvik was built to protect against all kinds of lawsuits, this is not true - it only protects against one kind - copyright/tradesecret lawsuit, and does not protect against patent lawsuit. This is exactly what article says where you quoted it. The reason why it needs to be pointed out is that, well, many people do not realize the difference.

Does it make more sense now?

Yes it does. If you followed the quoted sentence with one explaining that by creating Dalvik they specifically set themselves up for this suit I think it would be a little more clear. But I see exactly where you're coming from.

> Dalvik was intended to circumvent copyright and - perhaps - trade secrets, not patents.

I disagree. There is no reason that Google couldn't have built their own clean-room implementation of the JVM and called in Android. If they used no Sun code and no Sun trademarks, there were would be copyright or trademark infringement. Outside of some technical advantage, the only other reason to completely change the design of the VM would be to get around JVM related patents.

It's quite possible that Dalvik allows Google to avoid most of Sun's patents on Java technology. The patents included the suit would seem to be violated by most VM technologies, including Microsoft's .NET CLR.

Going further than that, given Google hired a number of staff that had worked on the Java implementation at Sun, and given that the head of Google was present at Sun as the Java patent-and-copyright trap was being constructed, it seems inconceivable to me that Dalvik would have been permitted to violate Sun's patents.

In a rational world and under a reasonable patent system, I might agree. But you know as well as I do, Simon, probably better, that under the current process it's difficult to guarantee that you're not violating anyone's patents. Particularly when you're reimplementing an existing system.

Is it possible that Oracle's patents don't read on Dalvik? Certainly. Did Google take care to minimize the risk of such? I'm sure they did.

But however careful the execution, the system at present is would be actively working against them.