SAN FRANCISCO -- Rather than 12 Angry Men, proceedings in Oracle v. Google are starting to play out more like And Then There Were None.
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 that 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 U.S. District Court of Northern California on Friday morning anyway after the jury was sent home early on Thursday afternoon, she called the court after 9:00PM PDT on Thursday 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 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 follows the departure of another female juror on Tuesday morning ahead of closing arguments after she called in to say she couldn't make it due to car trouble on the San Francisco Bay Bridge.
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. 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 U.S. Patent No. 6,061,520, which is addressed in question two of three 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 expert witness John Mitchell and Google expert witness Terence Parr. Excerpts from both readings focused the terminology and differences of simulated execution and pattern matching.
In closing arguments, lead Google attorney Robert 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.
Parr said that the dx tool in Android doesn't use simulated execution for the purpose of identifying static initialization of an array. Mitchell had 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 reentered 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.
Here's the jury's verdict form:
This item first appeared on ZDNet's Between the Lines blog under the headline "Oracle v. Google loses another juror; patent verdict looks distant."