Oracle-Google: wilful infringement battle looms

Over the weekend, lawyers for both Oracle and Google filed several motions that could either speed up the case at the US District Court of Northern California, or plunge it into a much longer, messier trial.
Written by Rachel King, Contributor

Over the weekend, lawyers for both Oracle and Google filed several motions that could either speed up the case at the US District Court of Northern California, or plunge it into a much longer, messier trial.

One of the more noteworthy points was to move the debate of patent-infringement wilfulness into the second phase of the trial going on right now. Interestingly, this looks like one area where both sides of the courtroom appeared to agree — at least, when it comes to timing.

The court will address the issue of direct wilfulness now, before the third phase of the trial can begin, which will focus on damages.

The necessity and timing of the third phase depends on a number of factors. For one, copyright infringement is still a complicated issue. Although the jury returned a partial verdict last week, acknowledging that Google infringed upon Oracle's intellectual property and copied the nine lines of code in the rangeCheck method, the jury was unable to agree upon whether Google's fair-use argument was valid.

Among other nitty-gritty details, Judge William Alsup still needs to determine whether the 37 Java APIs are even copyrightable in the first place. Furthermore, the jury needs to deliberate over whether Google is guilty of patent infringement on two patents related to the Java Virtual Machine.

Through a separate motion, Oracle also tried to get the damages phase postponed altogether, with a new jury on-board. Alsup rejected this.

Oracle is arguing that it has evidence to prove direct wilfulness for patent infringement, mostly based upon the testimony of Google's senior vice president of mobile Andy Rubin, as well as emails from Google engineer Tim Lindholm — both of whom have played pivotal roles throughout this trial.

If Oracle could prove that Google wilfully infringed upon its patents, it could significantly boost how much it could receive financially in damages. However, Google's stance is that Oracle can't prove it. Google's central argument all along has been that Android and the Dalvik Virtual Machine it runs on was developed without any knowledge of Sun Microsystems' patent portfolio.

Alsup looked sceptical on Monday morning on the Lindholm emails, telling Oracle counsel Michael Jacobs that the emails don't specifically address the US Reissue 38,104 patent, or US Patent 6,061,520.

"I bet you Mr Lindholm never heard of those two patents," Alsup added.

Another sticking point here is validity. The '104 patent has been reissued twice, which is partially why Google has continued to challenge its validity. However, Jacobs reminded the court that validity was previously ruled as irrelevant in this case. Interestingly, the jury knows nothing about the validity question.

In the end, Alsup ruled that wilfulness will be addressed in phase two. The catch is that the matter of wilfulness is only relevant up until the time when the lawsuit was filed in July 2010. Nothing else after that can be taken into consideration.

"This is going to be a mess if we get into post-complaint. So no post-complaint, period," Alsup explained. "We'll craft a sentence in jury instructions not to speculate about events that occurred after filing of the complaint."

Alsup also reasserted his belief that they will move into phase three if liability is established for either of the patents — or, at the very least, to address the decompiled code and rangeCheck matters from phase one.

However, the 37 Java APIs will not be addressed in phase three; Alsup quickly followed up by saying, "we're not going to have a damages phase on the main copyright issue, because that hasn't been established yet".

The judge also reiterated his lack of faith in Oracle's decision to go after the infringer's profits instead of statutory damages, saying that the idea of getting billions or hundreds of millions of dollars for nine lines of code is a "hyper-extreme proposition".

Oracle and Google will deliver their closing statements for the patent phase of the trial on Tuesday. After that, the jury will go back into deliberation mode.

Via ZDNet US

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