In recently filed court documents, Google argues that the version of Android used on the Samsung Galaxy Nexus is a "trade secret"
In February of 2012, Apple filed a motion for a preliminary injunction against Google’s flagship Android 4.0 device – the Samsung Galaxy Nexus. Specifically, Apple is asserting that the Galaxy Nexus infringes upon at least 4 of Apple’s patents and wants to halt all sales of the device.
As part of that litigation, Apple on March 6 made a number of document requests to Samsung, including a request for the Android source code used on the Galaxy Nexus as it relates to features such as slide to unlock, text detection, and unified search. Apple also asked for the differences between Android on the Galaxy Nexus and the Android Open Source project.
And here’s where things get interesting.
Samsung responded on April 3rd claiming that it’s unable to provide Apple with the source code in question.
Samsung’s brief reads in part:
… the source code for the version of Ice Cream Sandwich used on Galaxy Nexus was written by Google, not Samsung. Samsung does not have possession of that source code. To Samsung’s knowledge, the only company in possession of the source code used on Galaxy Nexus is Google. Google provides Samsung only with the binary object code, which is not readable by humans.
Accordingly, to the extent that each of these requests for production is based upon the flawed premise that the source code at issue is Samsung’s source code, Samsung cannot produce source code that it does not have.
Apple, for what it’s worth, called this response “unusual”. And though it may be 100% accurate, I can’t help but remember a Motorola blogpost where the company detailed why the upgrade process to Ice Cream Sandwich can be a slow process, noting at one point that
Each new version of Android launches with one device partner, in what is called the “Google Experience Device” or GED, the showcase device for a new Android release. The GED partner for each launch works with Google during the development of the OS so that the device and new Android version are ready for a coordinated simultaneous launch [emphasis added].
Hmm..
In any event, Apple two days later it filed notice with the court of its plans to subpoena Google to get said information.
The subpoena was subsequently served shortly thereafter and demanded, amongst other things, that Google hand over the source code used on the Samsung Galaxy Nexus along with information detailing the differences between the source code used on the Galaxy Nexus and the Android 4.0 code available to the public.
Keeping the party going, Google responded on April 16 with a motion laying out its objections to Apple’s requests on a number of grounds.
One of Google’s objections is that Google would only hand over proprietary source code if it’s “subject to and in reliance upon an appropriate protective order governing confidential source code.”
In a subsequent response, Apple points out that it has already agreed to a protective order regarding source code that currently covers 4 separate actions involving Samsung. Consequently, Apple writes that the current protective order Apple is already party to with Samsung should be sufficient.
Google should not be permitted to insist on a more restrictive prosecution bar than the prosecution bar to which Apple and Samsung already agreed, and which this Court already has approved, particularly when the same law firm that represents Samsung represents Google in these proceedings. Google’s selection of common counsel, its active support of Samsung’s opposition to Apple’s preliminary injunction motion, and its assertion of a “common interest or joint defense privilege” all belie Google – and Samsung’s – claims that the two companies are acting independently with respect to Apple.”
As for Google’s specific objections, it points out, via the statements of a number of Google software engineers who worked on various portions of Android, that the “internal functionality of Android running on the Samsung Galaxy Nexus is Google’s trade secret and confidential business information” and that not every version of Android is released through the Android Open Source Project.
Interesting stuff.
To get a feel for Google’s objections, here’s a portion of Google engineer Bjorn Bringert’s statement describing the Quick Search Box used on the Samsung Galaxy Nexus and why the source code behind it can’t be handed over.
As shipped, the Samsung Galaxy Nexus contains seven applications that receive the user’s input from the Quick Search Box Activity: ApplicationsProvider, Books, Browser, Messaging, Music, People, and Videos. In addition, the Quick Search Box Activity transmits the user’s input to remote Google servers, and can receive in return potential completions for the search term, such as suggestions for “british embassy” and “British empire” when the user has typed “brit em.” These responses are generated by the remote Google servers, not by the device. The source code used by the remote Google servers to generate responses is proprietary to Google and kept confidential. it is not part of Ice Cream Sandwich and is not available in the Android Open Source Project.
But this functionality is hardly unique to the Galaxy Nexus, and Google readily admits as much, saying that it’s been available in the Android Open Source Project since 2009. But over and over again, Google stresses that the version of Android running on the Galaxy Nexus is a Google trade secret.
Google’s engineers add:
Within Android Ice Cream Sandwich, there are many versions of Android. Some versions are internal to Google; others are posted on the Android Open Source Project; still other versions are used in devices sold to consumers.
So why is this a problem?
Well, Florian Mueller astutely observes that “Google will publish whatever it publishes on open-source terms, but the software running on the lead device for the current generation of Android is a secret.”
So Android is open, right? Or maybe just sometimes?
And it’s not like it’s all that important, but when Google likes to tout at every opportunity the open nature of Android and then holds a secret sauce version of its mobile OS hostage from 99% of Android manufactures, it just seems disingenuous.
And this type of scheme could of course get much more thorny if the next flagship Android device happens to be from Motorola, you know the company Google acquired not too long ago. I wonder how Samsung might feel when they’re no longer the top dog and Motorola is getting the secretive version of Android at the expense of everyone else.
In any event, Apple and Google’s legal teams tried to work things out but were ultimately unable to come to an agreement.
Consequently, Apple last week filed a motion seeking to compel Google to provide all of the information Samsung claims it’s unable to produce.
