Rather than 12 Angry Men, proceedings are starting to play out more like And Then There Were None in the Oracle versus Google case.
That's because the jury lost another member on Friday morning, bringing the total count to five men and five women. The trial originally started with 12 people in April; five men and seven women.
The juror who was dismissed on Friday complained the day before that she had come down with a cold. Although she was originally instructed to try to show up at the US District Court of Northern California on Friday morning after the jury was sent home early on Thursday afternoon, she called the court after on Thursday night to inform the court that she wasn't going to make it on Friday.
As he warned, Judge William Alsup dismissed her from jury duty immediately on Friday morning, telling the jury that it would be an inconvenience to the remaining 10 of them if proceedings were delayed any further. Thus, the jury continued to deliberate on Friday.
This followed the departure of another female juror on Tuesday morning ahead of closing arguments, after she called in to say that she couldn't make it, due to car trouble.
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 is possible to continue proceedings even if the total count drops by one or two. On Thursday, he specified that the jury count could be as low as six for the trial to continue without disruption.
At the same time, based on the questions from the jury thus far, it looks like they could be at an impasse yet again over US Patent 6,061,520, which is addressed two of the three questions on the special verdict form for the patent phase of the case.
Twice, the jury has requested to hear transcripts of court testimony read back to them — specifically from Oracle's expert witness John Mitchell and Google's expert witness Terence Parr. Excerpts from both readings focused on the terminology and differences of simulated execution and pattern matching.
In closing arguments, Van Nest said, on the 6,061,520 patent, that every expert witness who acknowledged every step of the method must be present, including simulation of the bytecode. He also explained that Android doesn't implement simulated execution like Oracle argues, but, rather, pattern matching.
Parr said that the dx tool in Android doesn't use simulated execution for the purpose of identifying static initialisation of an array. Mitchell said that simulated execution includes pattern matching.
Finally, also pointing towards potential problems in the deliberation room, one juror submitted a note on Friday afternoon, asking why the verdict vote has to be unanimous.
The judge responded soundly, "It's the law. That's why it has to be unanimous. Congress said it has to be unanimous."
Before the jury re-entered to hear the answer and reading of Parr's testimony, Alsup added that he has "been privileged to preside over more than 100 trials," with the vast majority of them being jury trials. He said that only in a couple instances did he have juries that could not come to unanimous decisions.
Oracle v. Google: special verdict form for patent phase
Via ZDNet US