Oracle, Google Take Swings in Round 2

The Oracle v. Google copyright infringement and patent violation trial is continuing with the second phase, despite key unresolved issues from the copyright portion of the case.

Following the jury’s partial verdict earlier this week, Google is seeking a new trial on the copyright phase. Meanwhile, as arguments over whether Google infringed on Oracle’s Java patents get under way, it is clear that the jury will be presented with much of the same testimony and evidence that was central to the copyright portion.

Google’s Position

In the first phase of the trial, the jurors were asked to decide whether Google used Oracle’s copyrighted material in 37 Java APIs written for Android and, in the event that it did, whether it could be considered fair use.

The jury found that Google did, in fact, incorporate Oracle’s Java language in the 37 APIs. However, the jurors could not decide whether that constituted fair use of the material.

In a filing a filing made Tuesday in the U.S. District Court for the Northern District of California, Google argued that because the jury failed to reach an answer on the question of fair use, a mistrial was warranted because the matter was “indivisible.”

Oracle and Google also are waiting to hear whether U.S. District Judge William Alsup will rule that APIs can be copyrighted.

Oracle does not seem inclined to go through another trial. It has suggested in its own filing that the court decide the issue of fair use. In return, Oracle would not pursue a claim for damages in connection with the Java code that the jury found Google had infringed.

Google will likely be better off pursuing a mistrial since it has a very good chance of winning one, Klemchuk Kubasta partner Kelly Kubasta told the E-Commerce Times.

“They have challenged it on constitutional grounds as well as on Supreme Court precedent,” he said. At the same time, Kubasta anticipates that the judge will rule the APIs cannot be copyrighted, which would render the motion for mistrial moot.

Same Old, Same Old

The start of the patent portion of the trial kicked off with Oracle once again calling Android chief Andy Rubin to the stand.

Oracle attorneys focused on points they emphasized in the copyright portion of the trial, in particular, that Google knew at some point in the development process that it needed to license Sun Microsystems’ patents.

Oracle’s attorneys reintroduced emails exchanged among Rubin and other Google staffers about a possible lawsuit from Sun Microsystems and negotiations for a partnership in which Google would have the rights to Sun’s IP.

Under questioning, Rubin maintained that as an engineer, he did not feel qualified to seek out information on patents — that was the bailiwick of “a trained lawyer,” he said on the stand.

Rubin also pointed to a favorable blog post written by former Sun CEO Jonathan Schwartz, which Google cited in the first portion of the trial to bolster its position that it didn’t think it needed to license Sun’s IP.

It is likely court watchers will see more evidence and testimony from the first phase of the trial repeated in the patent portion, Kubasta said, as there is significant overlap between the two issues.

Improvement Patents

Oracle attorneys may have scored a win with some of Rubin’s testimony, Kubasta continued.

“Rubin kept on pointing out that virtual machines have been around forever, and he didn’t think there wasn’t anything that could be infringed,” he said.

Oracle will respond correctly that the patents it is asserting are improvement patents, and there could have been a patent on the virtual machine, he predicted.

“Most patents that are issued these days are improvement patents,” Kubasta explained. “So the real question is not whether Oracle had a patent on the concept of a virtual machine but whether it patented an improvement on this concept. Rubin just talked about patents for virtual machines, not their improvement patents.”

Ignorance Is No Defense

Rubin didn’t do Google any favors by claiming ignorance of existing patents, Kevin C. Taylor, partner at Schnader Harrison, told the E-Commerce Times. “Lack of knowledge is not a valid defense, although it could be relevant in the damages phase. If you know something has a patent and violate it anyway, the damages are higher.”

Rubin also contradicted himself in yesterday’s testimony, Taylor noted. When asked about the email during his deposition, Rubin reportedly said the legal action Sun threatened was intended to bring the two companies back to the negotiating table. In his testimony, though, he said it referred to another matter entirely.

“But as chief of Android, why would he be talking about matters outside of Android?” Taylor wondered. “I think that damaged his credibility.”

Oracle and Google did not respond to our requests to comment for this story.

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