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Oracle tries another patent play in Google case

It says the U.S. Patent Office has upheld a Java patent that was previously rejected. Google says the judge dismissed the patent from the case, period.

A ruling by the U.S. Patent and Trademark Office may have added a small twist to Oracle's battle against Google.

Late yesterday, Oracle told the court that a patent previously rejected by the USPTO was certified last week, allowing it to be used in the database giant's Java patent case against Google, according to Foss Patents' Florian Mueller.

Google sees it differently.

"The USPTO ruling is on the prior art that was submitted at that time, not on the inherent validity of the patent itself," a Google representative said. "It is important to note that Judge Alsup ordered the '702 patent dropped with prejudice from this case."

As a result, Google can still assert that the patents are invalid and never should have been issued, even if they're confirmed as "patentable," according to Ars Technica. So this may not be a guaranteed slam dunk for Oracle.

In legalese, the USPTO gave Oracle notice of its intent to issue an ex parte reexamination certificate confirming all of the asserted claims of patent No. 5,966,702.

Initially issued to Sun Microsystems, the patent covers a "method and apparatus for pre-processing and packaging class files" used for Java. The latest action is a boost for Oracle because the company had previously agreed with the court that only patents not rejected by the USPTO would be admissible at trial.

And according to Mueller, "that patent is now set to come back with a vengeance since patents surviving reexamination are particularly powerful."

The claims in the patent were initially considered invalid by the USPTO last June and again this past February, Mueller noted. But Oracle refused to back down, filing another request for consideration, which was eventually upheld by the patent office. This now adds a third Java patent to the two existing ones considered valid by the USPTO for purposes of the legal case.

Google is likely to oppose the introduction of patent No. 5,966,702, but Mueller believes the odds are in favor of Oracle and sees no reason why all three patents would not be considered at the trial.

The two companies are in the second week of a court case over Java licensing issues. Oracle filed a lawsuit against Google in 2010, asserting that Android infringes on key Java patents and copyrights. The trial is currently in the copyright phase, according to Mueller, while phase 2 will deal with the actual patents.

Mueller has been following and documenting the case in his blog but has received money from Oracle to act as a consultant.

Oracle declined to comment on the case.

Updated 9:30 a.m. PT with responses from Oracle and Google.