Judge warns Oracle could end up with nothing in IP trial

Judge warns Oracle could end up with nothing in IP trial

Summary: Oracle makes a last-stand effort on trying for infringer's profits, but possibly reopens the door for accepting statutory damages.

TOPICS: CXO, Google, Oracle

SAN FRANCISCO -- If the Oracle v. Google trial wasn't a mess before, it has certainly evolved into a tangled, tangled web at this point.

See alsoGoogle: No 'shred of evidence' Android team saw Sun's patents Oracle argues 'Google's reckless path to patent infringement'

It's becoming more about what the judge has to decide rather than what the jury must decide, including if APIs are copyrightable, Google's motion for a mistrial on phase one dealing with copyrights, and putting off the third phase on damages altogether. Given that we're still waiting for decisions on all of these things, the schedule and future of this trial becoming increasingly unclear.

Legal teams from both sides of the courtroom met in front of Judge William Alsup in an afternoon hearing without the jury on Tuesday to discuss motions heading into phase three of the trial, which would focus on damages.

Representing Google, attorney Daniel Purcell stated that Oracle was already looking to call Google CEO Larry Page and executive chairman Eric Schmidt back to the stand -- possibly as soon as Wednesday. That's because if the jury manages to reach a unanimous verdict by tomorrow finding patent infringement occurred, then there is the potential that we could go straight into phase three immediately.

Therefore, Purcell argued that it might be impossible -- let alone unnecessary -- to call Page and Schmidt in on such short notice. On this point, Alsup didn't seem to care about the timing, responding that if they're subpoenaed, then they need to show up regardless given the size and importance of this lawsuit.

However, Alsup followed up by saying that he wouldn't understand why Oracle would call upon them over the nine lines of code in the rangeCheck method that were found to be infringed upon by Google in the first verdict of the trial. Since that time, the court has also overturned one ruling to now favor Oracle and that Google's conceded use of the English-language comments in the Java test files are also in violation of copyright infringement.

Nevertheless, Alsup maintained his opinion throughout the hearing that Oracle is "going on a fishing expedition" with the damages phase if it really wants to go after infringer's profits instead of just statutory damages.

Oracle counsel David Boies tried to convey to the judge that there is no precedent for limiting the plaintiff to statutory damages and prohibiting them from going after infringer's profits.

"There is no case, none, in which there has been proven a product that was containing copyright infringed materials that was distributed and revenue generated and recorded by the defendant where it had been held that the burden is still on the plaintiff to go forward," asserted Boies.

Boies acknowledged that "nine lines of code is a small percentage," but he posited that the test files are much more substantial -- even if they're not included in the current version of Android.

"This is not a case, not a question of how large the damages are," Boies said, arguing that it is a question of whether or not Oracle should be precluded as a matter of law from seeking infringer's profits just because the infringed material is small.

Furthermore, Boies argued the nine lines of infringed code in the rangeCheck method and the test files benefitted Google in several ways, including accelerating the time frame in which Android could be released in 2007.

"They want to argue that somehow this court ought to say that if something is small, you don't get any infringer's profits," said Boies about Google. "It gives them a free pass on these things they deliberately copied."

Judge William Alsup warned Boies that if Oracle fails in phase three to prove to the jury that it deserves infringer's profits for the infringed copyrights -- and if it loses on counts in the patent phase of the trial -- Oracle would end up without anything at all.

Boies acknowledged this to be true and responded, "We think as a matter of principle we're entitled to infringer's profits."

Boies continued by asserting the law only requires the plaintiff, Oracle, to demonstrate there was a product that infringed copyrighted material and then generated revenue.

"Once we have done that, I believe the burden shifts to the other side," Boies posited, adding that even if he is wrong about that, he thinks it's still possible to prove that Google used the copyrighted intellectual property just to release Android faster.

Nevertheless, Alsup slapped down that defense, remarking that is "not a good argument." Admitting that he knew nothing about Java before this trial started, Alsup said that he has since learned how to write enough code leading him to believe that anyone could have written the nine lines of code in the rangeCheck method.

"The idea that somebody copied that in order to get to market faster when it would be just as fast to write it -- it was an accident that it got in there," Alsup told Boies. "You're one of the best lawyers in America. How could you even make that argument?"

Boies maintained it's still the principle of the matter that is relevant here because the code was important to Google for releasing Android.

"I think we're still entitled to make a case for infringer's profits," Boies reiterated.

In the end, Boies backtracked altogether, possibly grasping for straws and reopening the door for Oracle to accept statutory damages instead.

Boies proposed to the court that if Alsup rules that the 37 Java APIs from phase one are actually not copyrightable, Oracle will accept a roadmap leading to statutory damages. The significance here is the payout potential is far smaller for Oracle as the maximum is $150,000.

Alsup said earlier on Tuesday that he would likely not rule on the matter of copyrighting APIs until at least next week. Oracle also wants to delay the copyrights damages hearing until this can be determined.

Due to his courtroom schedule, Alsup refrained from making a ruling on the current motion about the damages phase on Tuesday afternoon.

However, Alsup did order that Oracle should submit "a detailed offer of proof as to nexus," explaining the correlation of the test files and nine lines in rangeCheck with infringer's profits by 9PM PDT on Tuesday evening.


Topics: CXO, Google, Oracle

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  • Greed knows no bounds

    What's new?
  • That HAD to hurt in open court.

    "The idea that somebody copied that in order to get to market faster when it would be just as fast to write it it was an accident that it got in there, Alsup told Boies. Youre one of the best lawyers in America. How could you even make that argument?" Goes to show that IF you pay someone enough they will throw their grandma under da bus. Feel sorry for da guy.
  • Oracle should hire ME

    "Furthermore, Boies argued the nine lines of infringed code in the rangeCheck method and the test files benefitted Google in several ways"

    I believe I am extremely qualified as R&D Director for Oracle. I am able to write these 9 lines of code easily. I will train Oracle development team how to write code. Furthermore, I will show Oracle developers how to write more complex code with more than 9 lines.
    • "I will train Oracle development team how to write code."

      Funny... but the Oracle development team didn't write the code. Let's not forget that Oracle basically purchased a large enterprise with the intention of finding something to sue Google over for infringement. Now they are down to the last claims and so far the only one with merit and they themselves discounted the value of these 9 lines of infringed code. Yet they still want to go after infringer's profits when it is well established the 9 lines of code could have been written by anyone therefor have no real value. But, on the principal of the matter, they think they are due a large settlement based on the profits of what essentially is valueless code that could have been written by anyone?
  • When you have the judge writing code AND...

    ..saying that even a java-noob like him can write the rangeCheck(..) method(s).

    It looks bad. LOL
    • Says the Judge

      ???You???re one of the best lawyers in America. How could you even make that argument????

      I just loved that part. I'm sure Boies was just standing there stunned. Started hemming about not being a java expert right away. Wish I could have been there for that.

      The rest of this should go pretty smoothly now.
      • Eli$on should go home

        and give us a break from this silly theory. Oracle lost, what's so hard to concede it!
        The Linux Geek
      • RE: I'm sure Boies was just standing there stunned.

        It is so unfortunate that video is not allowed in Federal courts, because it would have made for an interesting YouTube video.
  • I can write the rangeCheck() method in C# with 9 lines of code!

    Now sue me. :)
    Grayson Peddie
  • So help me understand...

    Was Oracle stupid to believe it would make $6 billion out of 9 lines of code or was someone smart enough to make them believe that?
    • That is the big question.

      The suit started out with rangeCheck(), test files, 37 APIs and 7 (IIRC) patents. Elli$on ego and Oracle dwindling user base played a part, I'm sure. Then there are folks like Florian Mueller who touted the 6bil based on who knows what. Then there are the Google bashers who have no sense whatsoever. Then there is Boies et al who undoubtedly hyped their expertise. What they didn't count on was a judge with a math degree who could code AND Van Nest.
    • RE: Was Oracle stupid to believe

      One must wonder how Eli$on, et al, will explain a stunning loss at the next shareholders' meeting. I wonder who will be offered up to [b]appease the Gods[/b].

      Doesn't the term 'fiduciary duty' (or should I say, [b]failure to exercise proper[/b]) have any application here?
    • Oracle is not after that money

      All Oracle needs to achieve in this lawsuit is "Google has infringed Oracle IP with Android". Then, they can go forward and ask Android vendors (not Google) for royalties, just as Microsoft has done.

      If Oracle wanted Google to pay, they would have followed different strategy.

      The ugliest part of the lawsuit is however, Google fully taking this bait and assisting Oracle in their endeavor.
      • Is this the best you can come up with?

        [quote]If Oracle wanted Google to pay, they would have followed different strategy.[/quote]
        Rubbish. Sheer, unadulterated [b]balderdash[/b]. What color is the sky where you are? Have you (conveniently) forgotten the original claim that Oracle would get [i]billions[/i] from Google, now that the Judge is openly calling Oracle's claims "ridiculous"?
  • when did Oracle become....

    When did Oracle become a profit on litigation instead of profit on innovation company? Considering my experience with Oracle products I would be afraid of using their 9 lines of code.
    • RE: When did Oracle become a profit on litigation

      When its C level executives became fixated [b]on increasing shareholder value[/b] and pacifying the [i]Wall Street [u]Anal[/u]ysts[/i] who trade stocks like the common wage slave changes their underwear.

      Wall Street traders are in it for the churn, every trade is a [b]commission[/b] that they reap.

      Now, for those [b]real[/b] nine lines of code:
      do until $hell_freezes_over
      echo $fear_uncertainity_and_doubt
      echo $stock_value_is_crashing
      echo $find_a_juicy_target_for_litigation
      call waste_money($??)
      if -e #cash_reserves break;
      seek $angel_investors
      call stockholders_meeting()
      function waste_money()
      echo $global_corporation_is_stealing_from_us
      write #large_check_to_lawyers_for_lawsuit
      seek $court_judgment
      lose $court_judgment
      echo $global_corporation_escapes_liability
      whine $in_court_of_public_opinion
      function stockholders_meeting()
      fire $board_of_directors
      fire $executive_management
      hire $new_directors
      hire $new_management
      try again_to_innovate
      return if_you_are_successful

      • Legal notice

        The code contained in the posting above has been found to infringe on Oracle's copyrighted strategic plan. We will be seeking damages of some unspecified type from both ZDNet and you personally, as well as the manufacturer of the PC you used to post (for not building in technology that detects and prevents typing of copyrighted material - technology for which we hold the patent, and if it HAD been included in the PC architecture, we would have sued the PC maker for).
      • Now thats some great code... but will it compile without errors?

    • My favorite part

      "Boies acknowledged this to be true and responded, ???We think as a matter of principle we???re entitled to infringer???s profits.???".

      Considering the number of software patents out there, I do truly hope this bites them in the ass. Oracle getting sued for $6 billion themselves over a bunch of crappy patents and losing would be the perfect end of this story. They truly deserve it.
  • Oracle agrees to settle for ham sandwich for copyright damages.

    Which is a good thing and saves the judge from ruling on APIs. which could potentially turn the software industry on its ear. Only 2 patents left and it don't look good for Oracle, IMO.