SAN FRANCISCO -- The jury in the Oracle v. Google trial is facing a few problems right now. At first, it looked like they were just being tripped up by technical terminology with different interpretations.
Now, it looks like the trial could lose another juror too.
The first note from the jury came around 12:30PM PDT after the jury had already been deliberating for more than four hours. On that note, the jury said it was "attempting to determine the scope and meaning of 'simulating execution of the bytecodes'" in U.S. Patent No. 6,061,520. They wanted to know if the existence of an example of the Android code not functioning when formatted in a normal simulation execution setting was permitted to be taken as evidence that Android's array initialization diverges from the patented array visualization.
The courtroom was clearly divided on how to respond. Google's lead attorney Robert Van Nest advised Judge William Alsup that the "simple answer is yes," adding to tell the jurors to give it the weight they think it deserves. On the contrary, Oracle counsel Michael Jacobs opposed this, arguing that some of the experiments that fall along these lines are irrelevant to the case.
The judge even offered both sides at least five minutes each to argue their opinions and instructional advice in front of the jurors, but that didn't happen either. Eventually, Alsup called the jury back out and basically told them that they have to figure it out themselves.
"There are things that I can give you further guidance on, such as if you were able to ask a question specific to one of my instructions," Alsup said.
Alsup continued on, explaining that this question "goes to the weight of the evidence and how to evaluate it," so it's for them to decide. One juror nodded along as Alsup spoke, and another one looked down with a grimace while the rest didn't reveal any emotion or response whatsoever.
A little more than an hour later, the jury returned with another note. In the middle of several other cases already on the afternoon docket in his courtroom, the judge interrupted those sessions as Oracle and Google's legal teams reentered the courtroom.
That time, they requested a transcript of a portion of Dr. John Mitchell's testimony be read to us, specifically the excerpts concerning pattern matching versus simulated execution. To recall, Mitchell, a professor of computer science at Stanford University, has been on the stand several times already as an expert witness on behalf of Oracle.
This question refers to the '520 patent as well, which is question two out of three on the special verdict form that can be read below. In closing arguments, Van Nest said on the ‘520 patent that every expert witness acknowledged every step of the method must be present, including simulation of the bytecode. He also explained Android doesn’t implement simulated execution like Oracle argues, but rather "pattern matching."
Jacobs said it would take at least 10 minutes to prepare this while Van Nest asked for 25 minutes. Alsup gave them 30 minutes.
After the legal teams left and the judge resumed with the other court cases, the jury came back with yet another note. This one read, "I'm sick. Can I get a sick day without being discharged? Sorry."
Originally starting out with 12 jurors, the jury dropped to a count of six women and five men on Tuesday ahead of closing arguments. Court proceedings started approximately 45 minutes late that morning after 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, Alsup dismissed her from the jury altogether.
Not one to take any nonsense or risk losing valuable time, the judge came to a similar choice on Thursday afternoon. Before revealing his final decision, the judge summoned the juror back in front of the lawyers and the public. She explained that she had a cold, which she developed this morning, and that she wanted to go home and take a nap. Assuring the court that she didn't want to be discharged, she said if she had Friday off, she would be better by Monday.
The juror also confirmed to the court that she is a nurse, to which Alsup replied, "What are the odds?"
Alsup briefly sent the juror back to the deliberation room while he mulled over what to do with Jacobs and Van Nest. The final plan became to send the jury home for the day immediately rather than at 4:00PM as previously scheduled. All of the jury was instructed to return on Friday morning. If the sick juror feels well enough to show up, she was ordered to do so. Otherwise, Alsup warned she would be dismissed from the jury immediately, and jury deliberations would continue on as scheduled on Friday with just 10 jurors.
Incidentally, the judge told the jury a few weeks ago that the trial can still carry on if it loses a few jurors. Alsup never offered an exact number, but he said that it was possible to continue proceedings even if the total count dropped by one or two.