Oracle argues 'Google's reckless path to patent infringement'

SAN FRANCISCO -- Closing arguments in the second phase of Oracle v. Google were presented on Tuesday morning, commencing with the plaintiff, Oracle.

Court proceedings actually started approximately 45 minutes late at the U.S. District Court of Northern California as one juror was late due to car trouble on the San Francisco Bay Bridge. After she informed the court via telephone that she would not be able to make it at all on Tuesday, Judge William Alsup dismissed her from the jury altogether. That brings the total jury count to six women and five men.

Attorney Michael Jacobs of Morrison and Foerster LLP spoke for Oracle, outlining Oracle's three core arguments: Google infringed upon U.S. Patent No. RE38,104 or U.S. Patent No. 6,061,520, and Google's infringement was willful.

Jacobs stated to the jury that Google has no defense because it concedes on most elements of the claims, and for a few of the disputed elements, he said Google's arguments aren't credible. He further described that some of Google's experts and evidence were "designed to distract from that focus."

Recalling arguments from phase one, Jacobs described what he referred to Google's "reckless path to patent infringement," arguing that Google willfully infringed upon these two patents to speed up the debut of the Android mobile operating system in 2007 as quickly and easily as possible.

Furthermore, Jacobs pointed towards Google lacking a license for these patents, and that the "fair use" argument is irrelevant in the patent portion of the lawsuit. Jacobs added that the "clean room" and "open sources defenses are also irrelevant.

Trying to counter Google's argument that it had no knowledge of Sun Microsystems's patent portfolio, Jacobs summarized the similarities between the stacks of the Android's Dalvik Virtual Machine and the Java Virtual Machine (which now belong to Oracle), arguing that they still don't excuse Google's infringement.

One example is that Oracle claims that Dalvik Virtual Machine simulates execution the same way that the Java Virtual Machine does.

The patent segment of the trial has been far more technical in evidence and presentation than the copyrights phase, focusing as deep as the Java bytecode level, which Jacobs said most Java programmers don't even work on. Although evidence in this phase was presented in a much smaller time frame than it was in phase one, both sides relied heavily upon testimony from engineering and programming experts rather than company executives.

However, one of the key differences that emerged between experts testifying for both sides was terminology, which has the potential to confuse and sway the jury one way or another.

For example, Google technical expert Terence Parr, a professor of computer science at the University of San Francisco, said that Dalvik involves "pattern matching," but testified that isn't the same thing as simulation. Oracle disagrees.

On the '104 patent, Jacobs cited that the only issue that Google disputes is "symbolic references." Oracle defined a symbolic reference as "a reference that identifies data by a name other than the numeric memory of the location of data, and that is resolved dynamically rather than statically."

Dr. David August testified as an expert witness for Google last week and this week, asserting that the Dalvik Virtual Machine does not include symbolic references at all, so there is no case for infringement.

But using the contradicting testimony of Dr. John Mitchell, a professor of computer science at Stanford University who testified for Oracle several times throughout this trial, Jacobs argued that the "truth is in the Android source code," and that the indexes in Android's instructions are symbolic references.

Thus, it might end up being an instance where the jurors just have to decide whom they understood or believe more.

UPDATE (05/15/12 11:40 AM PDT): During his rebuttal case following Google attorney Robert Van Nest's closing arguments, Jacobs rejected Google's claim that the Android team was not aware of Sun's patents before the lawsuit was filed July 2010.  He stipulated that this is not the same as Google engineers not having any access to Sun's patents before that.

"Google organizes the world's information," Jacobs exclaimed. "They have access to all of the world's information."

Also on the recklessness point, Jacobs lambasted Van Nest's recalling of the November 2007 blog post written by former Sun CEO Jonathan Schwartz.

Jacobs concluded that the "definition of recklessness is relying on a blog post."

Related:

• Oracle-Google trial gets messier ahead of damages phase
• Oracle might only receive $150,000 in damages from Google
• Judge denies Oracle’s motion to throw out Google’s fair use claim
• Google points to Sun’s SEC filings to defend previous testimony
• Android chief called back in Oracle-Google trial to discuss patents