Oracle v. Google trial gets messier as damages phase looms

Oracle and Google want to address issue of "willfulness to infringe" now in order to get around more complicated issues in phase three -- or possibly to avoid a third phase altogether.

SAN FRANCISCO--Over the weekend, attorneys for both Oracle and Google filed several motions that could either speed up the case here at the U.S. 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 willfulness" 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.

A long story short: The court will address the issue of direct willfulness now before the third phase of the trial can begin, which would 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 that acknowledged 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 or not Google's fair use argument was valid.

Among other nitty-gritty details, Judge William Alsup still needs to determine whether or not the 37 Java APIs are even copyrightable in the first place. Furthermore, the jury needs to deliberate over whether or not 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 onboard too. Alsup rejected this.

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

If Oracle could prove that Google willfully infringed upon its patents, that could significantly boost how much it could receive financially in damages. However, Google's stance here 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.

On the Lindholm e-mails, Alsup looked skeptical this morning, telling Oracle counsel Michael Jacobs that the e-mails don't specifically address the U.S. Reissue No. 38,104 patent or U.S. Patent No. 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 willfulness will be addressed in phase two. The catch is that the matter of willfulness is only relevant up until 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 we 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 as 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 infringer's profits instead of statutory damages, this time exclaiming 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.

This story was first published as "Oracle-Google trial gets messier ahead of damages phase" at ZDNet's Between the Lines.

 

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