Oracle ignores judge's advice, going after infringed profits

Oracle ignores judge's advice, going after infringed profits

Summary: In what the judge described as the "height of ridiculousness," Oracle turned down statutory damages and is going to try for an infringer's profit case.


SAN FRANCISCO -- In a last-ditch effort to save any face (or money) in this trial, Oracle is rolling the dice on obtaining damages from Google -- even going so far as to ignore advice from the judge.

See alsoOracle might only receive $150,000 in damages from Google

Judge William Alsup warned on Thursday that the most Oracle would probably be able to claim on copyright infringement would be $150,000 in statutory damages.

However, attorney Michael Jacobs from Morrison and Foerster LLP informed the judge that Oracle is not electing statutory damages on copyright claims.

Instead, Oracle is going with an infringer's profit case. Although Alsup previously lambasted that idea, he changed his mind on Friday and said Oracle could go ahead with that.

Nevertheless, that doesn't mean he thinks it's going to work.

To recall, the jury returned a partial verdict on Monday, and it only found that Google's conceded use of nine lines of code in the rangeCheck method was actually infringement.

Thus, when Alsup heard Jacobs say this, he warned that if Oracle goes down this path, they might not win anything at all, adding that it is the "height of ridiculousness" to think that Oracle could claim "hundreds of millions" of dollars for nine lines of code.

"The law can't operate that way," Alsup said. "In my mind, you're making a mistake."

In a later discussion on Friday morning, David Boies, also representing Oracle, tried to defend this strategy, arguing that the burden of proof is on Google here -- not Oracle.

"What we are saying is once you proved infringement, we think under the law we have claim for infringer's profit case," Boies asserted.

However, Boies also remarked that the question here is not about "how much we're entitled to," revealing that Oracle has probably acknowledged it won't be getting a big payday in this case. Therefore, the only way to save its image at this point would be to say this is about the principle rather than the money.

Of course, all of this might be moot anyway if Alsup rules that APIs aren't copyrightable in the first place.

In the end, Alsup still commented that he would be "surprised" if Oracle would be able to pull off an infringer's profit case. Google counsel Robert Van Nest chimed in, "I don't think you'll be a bit surprised, your honor."

Former Sun employee denies patent talk with Google

In an effort to move the trial along as fast as possible now, Google neared the end of its defense case in the patents phase on Friday, trimming down its proposed witness list considerably.

The Internet giant relied mainly on expert witnesses to explain the differences between the Dalvik Virtual Machine on Android and the Java Virtual Machine, but Google still included Sun's Vineet Gupta to try to prove a different point.

Although he did not appear in court on Friday, Google chose to playback an 8-minute edited video of his deposition on July 26, 2011.

Gupta started working at Sun Microsystems in 1997, continuing on through the acquisition at Oracle until June 2011. At Sun, he joined the team responsible for developing the company's overall licensing strategy, although he said he couldn't remember when he signed on to this project exactly.

"Don't ask me. I'm too old," Gupta joked.

Gupta explained that he was involved with the Sun-Google partnership negotiations that we now know eventually fell apart. Describing that there were several discussions over the course of a few years, Gupta said that they started between himself and Google's senior vice president of mobile, Andy Rubin, eventually growing to include other people at both companies.

The significance of using Gupta's testimony was to further bolster Rubin's previous statements in court that he wasn't aware of and didn't discuss Sun's patent portfolio during these meetings.

Using an email from Gupta to Sun's Rich Green in May 2006, Gupta had written that he was informed by Rubin that he was asked to hold off any more meetings until a patent issue had been resolved.

When asked in the deposition, Gupta asserted that had nothing to do with Java but rather some other patents in Sun's portfolio that it was interested in licensing to Google for purposes not related to Android.


Topics: Mobility, Google, Hardware, Mobile OS, Oracle, Security, Smartphones

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  • more proof of Google's innocence

    and crazy greed from Oracle!
    The judge should dismiss this lawsuit as frivolous!
    The Linux Geek
    • Not really

      [b]To recall, the jury returned a partial verdict on Monday, and it only found that Google???s conceded use of nine lines of code in the rangeCheck method was actually infringement.[/b]

      The jury says otherwise - 9 lines of code or 900 they are guilty of infringement. I think Oracle should take the money now rather than push for more but make no mistake Google is guilty according to the jury.
      • yeah really

        trust me, if oracle gets anything less than 100 mill, then Google would be the great victor here.

        you can't claim any real ownership of android (reason for money award) over 9 lines of code that a beginning programmer could write up in his sleep when you are considering the 9 million or so other lines of code that are not infringing.

        To claim otherwise is just trolling / personal vendetta against Google.

        just too funny how the android haters thought this would be a nail in the coffin LOL and while we are at it, Samsung and Apple are going to cross license technologies because it is in best interest of both companies (read the latest), how does that strike ya Android Haters!
      • Proportionality.

        Proportionality is a principle in law, the punishment should fit the crime.

        That is how the law works. Or do you think you should receive the same punishment if you stole a paperclip or $10 million from a bank? Theft being theft an all.
  • On the Nine Lines

    You may have understood this and phrased it differently, but the nine lines do not fall out of infringement if Google gets a favorable (and I think correct) ruling on the API question.

    The nine lines were a separate issue.
  • Litigants should listen to the judge

    I'm guessing, though, that Oracle intends to appeal regardless (they're just going through the motions).
    John L. Ries
  • Oracle can't back down

    Otherwise they'll have no shot on appeal.
    Michael Kelly
    • yes they can and should

      appeal on what? 9 lines of code? good luck on that
  • Are you KIDDING me???!??

    So Oracle is claiming copyright infringement on this:

    private static void rangeCheck(int arrayLen, int fromIndex, int toIndex) {
    if (fromIndex > toIndex)

    throw new IllegalArgumentException("fromIndex(" + fromIndex +
    ") > toIndex(" + toIndex+")");

    if (fromIndex < 0)
    throw new ArrayIndexOutOfBoundsException(fromIndex);

    if (toIndex > arrayLen)
    throw new ArrayIndexOutOfBoundsException(toIndex);


    What a JOKE! I wouldn't pay you one red cent for that code. Anyone can easily come up with that. Nothing innovative or unique about it at all. Who CARES?

    Oracle is nothing but a buncha punks.
    • Don't forget

      that those lines of code were removed from Java anyway. They are OBS and irrelevant.
      • Dont forget

        Looks a lot like old D-Base code to me.
    • 9 lines :)

      These lines of code are beyond irrelevant. It is ridiculous and it just shows how "smart" the judicial system is.
      • Maybe a bit smarter than you think

        The judge doesn't seem all that impressed with Oracle's argument. Illogic in the statutes is Congress' fault, not his.
        John L. Ries
    • I wouldn't pay one red cent for the Da Vinci Code

      But that doesn't mean I'm allowed to copy it.
      The Star King
      • The Da Vinci Code is a lot longer than 9 lines

        Giving Dan Brown a much better case if he wanted to pursue it.
        John L. Ries
    • Its now 8 files worth

      The judge has ruled on 8 files are infringing which subcontractors decompiled.

      I expect minimum damages from google but then expect the hammer of a judgement to be wielded against the phone manufactures.
    • The decompiled files are only test files.

      Not a single byte of them has been shipped on a single phone. So what makes you think the phone manufacturers are remotely liable?
  • could it be as simple as

    Larry Ellison just being Larry Ellison?
    • Could be

      It's even possible that Oracle's lawyers had already told Ellison what the judge told them and he said to go ahead anyway.

      I can't imagine that David Boies advised this move. It looks too much like $1 damages to me.
      John L. Ries
  • Oracle only profit

    Two things that Oracle knows well; buy out thier competition and hostile takeovers.