Google nonetheless attempted a "clean-room implementation" of Android; in other words, creating Java-compatible code without relying on Java intellectual property. The fact that some Java code is the same as some Android code is the basis of Oracle's claim that Google copied Java when it wrote Android.
Boies pressed Rubin at length about Google's internal discussions regarding the need to obtain a license from Sun and about Google's awareness that Android could fragment Java--create incompatible versions--which would be detrimental to Sun.
Although Rubin remained cool on the stand, Boies' persistent questioning made him look evasive. Boies asked him whether he understood that Sun would not want Java to be fragmented.
"I'm unclear if my definition of fragmentation is the same as Sun's," answered Rubin.
After dancing around the meaning of fragmentation, Rubin suggested that one of the email messages cited by Boies might be incomplete.
Boies appeared to be incredulous and exasperated, but Rubin persisted, noting that the formatting of the message indicated there were more people included in the email thread than the three listed on the exhibit's email header.
"There're two indentations and only one indentation in the response and that signals to me there's something missing," said Rubin.
Google's legal team opted to delay its questioning of Rubin until later in order to allow Oracle to call its last witness for the copyright phase of the trial, Eric Schmidt.
Boies questioned Schmidt about Google's goal for Android, citing a 2005 Google presentation entered into evidence. Schmidt confirmed that Google's goal was to quickly reach a high volume of Android handset unit sales in order to beat Microsoft and Symbian in the smartphone market.
As Boies probed Google's possible partnership arrangements to settle on a Java virtual machine and libraries for Android, Schmidt mentioned Apache, which maintains an open source implementation of Java for the desktop, Apache Harmony.
"Did you understand that the Apache software that you used was software that had not been authorized for mobile devices?" asked Boies.
"I did not know any of the details of the licensing arrangement other than that it was available to us," said Schmidt.
Schmidt said the conclusion that Google needed a Sun license, reached by previous witness Google engineer Tim Lindholm, was not reported to him.
Schmidt took issue with a 2005 presentation that stated "must take license from Sun," by noting the document was incorrect because it didn't accurately describe how Sun's licensing model worked. Boies asked the judge to strike that comment as non-responsive and the judge agreed.
Moments later, Oracle rested the first phase of its case.
Google counsel Robert Van Nest then began questioning Schmidt about his background as CTO of Sun and about the history of Java. This foray into the ancient history of the mid-90s prompted Boies to object, but the objection was overruled.
Schmidt proceeded to explain that part of Java's reason for being was to offer an alternative to the closed, proprietary world of Microsoft software.
Presumably, Google wishes to suggest a parallel between Microsoft and Oracle in their respective approaches to licensing and to underscore that Java once was more open than it is now.
