Against judge's advice, Oracle goes after infringed profits

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.

Judge William Alsup warned yesterday 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, 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 (in TimSort.java and ComparableTimSort.Java) was actually infringement.

Thus, when Alsup heard Jacobs say this, he warned that if Oracle goes down this path, it 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 this 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 today, 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 e-mail 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.

This story was first published as "Oracle ignores judge's advice, going after infringed profits" on ZDNet's Between the Lines.

 

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