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Judge denies Google bid to bar Microsoft witness

Google sought to prevent Microsoft's expert witness in a patent dispute from testifying because he allegedly looked at confidential source code without prior permission.

An administrative law judge denied Google's request to bar one of Microsoft's expert witnesses from testifying in the software giant's patent dispute litigation against Motorola.

Microsoft has accused Motorola of infringing on its patents with its phones that run on Google's Android mobile device operating system. Google alleged in a filing last week, that Microsoft improperly shared Android source code, which is supposed to remain confidential, with an expert witness it hired for the case. Google sought to prevent the expert witness from testifying, based on the alleged breach.

But U.S. International Trade Commission Administrative Law Judge Theodore Essex ruled against Google, first reported by Thomson Reuters. Under the rules of the case, Google was first supposed to attempt to resolve the matter with Microsoft. Google noted that one of its lawyers e-mailed a Microsoft attorney, offering to discuss the issue, but didn't receive a reply.

Essex, though, found "no basis to discern from Google's statement whether Google made a reasonable, good-faith effort to resolve the matter with Microsoft." He noted that Google didn't attach the e-mail from its lawyer. And Essex wrote that it was unclear if Google ever notified Microsoft of its intent to file the motion seeking sanctions.

Both Google and Microsoft declined to comment on the ruling.

The ongoing patent dispute, along with cases Microsoft and Apple have brought against other device makers using Android, led, in part, to Google's decision Monday to acquire Motorola. The Web giant, which has a scant patent portfolio relative to its rivals, will beef up its intellectual property stash when the deal closes, pending regulatory approval. That should help the company defend Android against future claims.