SAN FRANCISCO (CN) – As a trial looms to sort out whether Google’s Android infringes on Oracle’s patented Java applications, Google argued Friday that it should not have to pay for any alleged patent infringement that happened before July 20, 2010.
Oracle failed to mark any products with the any of the patents that Google allegedly infringed used to develop its Android operating system, according to a new motion from Google attorney Robert Van Nest. Oracle first notified Google of its infringement claims on July 20, 2010, during a meeting at Google’s Mountain View headquarters, the eight-page filing states.
If marking “does not occur and constructive notice is therefore lacking, the patentee cannot obtain damages for alleged infringement that occurred before the date on which the patentee gave the alleged infringer actual and specific notice of the patentee’s infringement claims,” according to the motion for partial summary judgment.
The marking requirement does not apply to methods or process claims because there is nothing to mark, but the requirement applies in this case because Oracle is asserting apparatus, system or computer-readable-medium claims relating to tangible objects that “can be marked and therefore must be marked as a precondition for obtaining any patent infringement damages,” Van Nest wrote.
The Java desktop and mobile embedded-software programs are allegedly just a few of the products that Oracle should have marked. Google said Oracle has admitted that it is not aware of any products expressly marked with the patents-in-suit.
Van Nest is a partner with Keker & Van Nest in San Francisco.