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Microsoft has filed its Memorandum in Support [PDF] of its Renewed Motion for Judgment as a Matter of Law in Novell v. Microsoft, the antitrust litigation Novell brought regarding WordPerfect.

It's 137 pages long. Yes. 137 pages. So somebody nominate me for sainthood, because I have done it as text for you, including all 77 footnotes, all of which add up to Microsoft saying it didn't do anything wrong to Novell, and it didn't owe Novell anything anyhow, so no reasonable jury could find for Novell, and even if Novell thinks Microsoft did some things a little harsh or deceptive, that's not covered by antitrust law. So Microsoft suggests that the judge bypass a second jury trial and just find for Microsoft as a matter of law.

If you've ever wondered why Microsoft never seems to change for the better, I think this document explains it. They feel antitrust law lets them do the things they do. It would like to get off on a technicality, or many technicalities, so it offers more than one the judge can hang his hat on if he's so inclined. And Microsoft clearly believes he just might be. 'Unreasonable' jurors might not know the law and how much a monopolist can get away with, but the judge knows. And he even expressed at trial that Novell's case was weak, so why go through a second trial?

Julie Zhuo, a product design manager at Facebook, wrote an opinion piece for the New York Times in November 2010, but it's the first I saw it, Where Anonymity Breeds Contempt, arguing that anonymous speech encourages trolling and so it should not be allowed in comments on the Internet: Instead of waiting around for human nature to change, let's start to rein in bad behavior by promoting accountability. Content providers, stop allowing anonymous comments. Moderate your comments and forums. Look into using comment services to improve the quality of engagement on your site. Ask your users to report trolls and call them out for polluting the conversation. Anonymous comments will always be allowed on Groklaw, and I'd like to explain why. She argues that there are no free speech, privacy, or First Amendment issues with such a decision to cut off anonymous speech. But there are.

There's been a slight change in the hearing date for the upcoming SCO v IBM hearing regarding SCO's desire to partially reopen the case. The new date is April 23, 2012 at 2:30 Utah time in Room 246. It's set to be heard by Judge Dee Benson, the new judge assigned, who, I gather, was unable to find a way to recuse himself.

Kidding. But there were a lot of recusals on this case.

As a lawyer you do the best you can to represent your client. You advise them what to say, what not to say, and basically, to say nothing unless they are asked a direct question. But sometimes the truth just comes out anyway. Thanks to Oracle engineer Hinkmond Wong, we now learn what the Oracle (Sun) Java engineers actually believe about Android: IT'S NOT JAVA!

This all came out in Wong's blog . Wong is one of the Oracle Java engineers identified as contributing to Dr. Cockburn's third attempt at a damages report. In the next few days Wong is going to be deposed by Google. And guess what they are going to ask him about. Probably this:

Remember when I told you that the initial ruling dismissing Barnes & Noble's patent misuse defense was not the end of the story? Here's the next chapter: Barnes & Noble has now filed a petition for review of the order on the following bases:The ALJ's decision rests on both erroneous conclusions of law and a misstatement of the facts. Rather than reviewing all facts in the light most favorable to Barnes & Noble, as is required under ITC precedent, the ALJ's decision actually mischaracterizes Barnes & Noble's factual allegations (and the evidence supporting them) and, indeed, simply overlooks the central basis for Barnes & Noble's patent misuse defense.

Consistent with the Federal Circuit's en banc decision in Princo Corp. v. International Trade Commission, 616 F.3d 1318 (Fed. Cir. 2010), Barnes & Noble alleges and has adduced evidence demonstrating that Complainant Microsoft Corporation ("Microsoft") has impermissibly "leveraged" or broadened the scope of the patents-in-suit through its "Android licensing program". But the most explosive section is where Barnes & Noble describes what Microsoft said to them when they approached Barnes & Noble with a demand that they pay for a patent license:"And what they basically told us was, it doesn't matter if you have defenses, whether you don't infringe, whether our patents are invalid, you're going to need to take a license, because there's no way that you can get out of our grasp, that we have so many patents that we could overwhelm you." The document says that Microsoft demands that all OEMs take a license from them and pay for all Android phones whether or not they actually infringe.

That didn't take long. Less than 24 hours after receiving the joint letter from the parties with regard to witnesses relied upon by Dr. Cockburn in preparing the third version of his damages report (711 [PDF; Text]), Judge Alsup has ordered (712 [PDF; Text]) Oracle to produce all five of the engineers referenced in the report for deposition by Google. We had anticipated that he would allow Google to depose Dr. Reinhold and perhaps two of the other four engineers, but Judge Alsup told Oracle to serve them all up. And not for a mere two hours apiece but for a total of 14 hours over two days, the time to be allocated by Google as it desires.

Although we have yet to have the opportunity to see the third Cockburn report, Google has seen it and in a joint letter to the Court (711 [PDF; Text]) requests the opportunity to depose a number of the (new) individuals who contributed to the revised report. The question raised is, "Who is a contributor?"

Google argues that anyone named in the report as contributing to the report is fair game, especially if they were never previously identified as a witness by Oracle and Google never had an opportunity to depose them. Oracle argues that some contributors were not contributors at all and refuses to produce four of those individuals for deposition.

The big news being reported by Bloomberg is that Jeff Hsu, a staff attorney at the ITC, said in an interview he will be recommending that ITC Judge Theodore Essex find Barnes & Noble has not infringed three Microsoft patents. Essex rules in April on that.

If I were a FUDster, I'd write that this means Barnes & Noble has prevailed, but I just tell you the truth, which is that this is one step in a longer process. It is, undeniably, however, fabulously good news for Barnes & Noble.

It is also not a total surprise, in that the quality of Microsoft's patents is pitiful. It may also explain why Microsoft keeps dropping patents from the case. Microsoft says it's doing it to "streamline the investigation":Pursuant to 19 C.F.R. § 210.21(a)(1), in order to streamline the investigation, Complainant Microsoft Corporation hereby moves for partial termination of the investigation as to U.S. Patent No. 5,889,522 ("the '522 patent"), based on partial withdrawal of the Amended Complaint as to the '522 patent. The investigation will continue as to U.S. Patent Nos. 5,778,372, 6,891,551, and 6,957,233.And you can believe that explanation if you want to. Or, you can take another quick look at all the prior art Barnes & Noble presented to the ITC regarding Microsoft's patents, including the '522 patent.

The U.S. Court of Appeals for the Federal Circuit earlier today denied Google's petition for a writ of mandamus to overturn the district court's ruling that the Lindholm email was not privileged. Maybe, just maybe, Google will now throw in the towel on trying to protect the Lindholm email.

In an opinion which cast little doubt as to the law or the facts in this instance, a three-judge panel of the Federal Circuit found the claim of privilege to be totally undermined by the content of the email, the instructions that gave rise to the email (as stated in the body of the email), and the fact that the addressees of the email were not legal counsel to Google.

Although Dr. Cockburn's third attempt at a damages report was due to be filed last Friday, February 3rd, it has yet to show up on the electronic docket. That is most likely due to its length and the possibility that Oracle will seek to redact portions of the filing. In the meantime, Judge Alsup has issued a clarifying order with respect to the trial briefs on the issue of copyright. (710 [PDF; Text]) The judge basically instructs the parties to not interpret the law for him but to set out the relevant passages so he may draw his own conclusions. In addition, he wants the parties to make clear where they agree on the underlying law.

We also have the transcript of the July 21 Daubert hearing on the first Cockburn damages report. (Text of Document 231) You will recall that it was at the conclusion of this hearing that Judge Alsup ordered Oracle and Dr. Cockburn to go back and try again with something closer to a more reasonable assessment of damages. (Damages Report - Try Again, Oracle) We now get a better insight into the arguments set forth by Google in attacking the original report.

Today is the due date for Dr. Cockburn's third attempt at a damages report on behalf of Oracle, and just to make sure Oracle knows what needs to be submitted, Judge Alsup has issue a reminder order. (709 [PDF; Text]) The judge wants to see not only the report but also all of the related reports and studies that support it.

To recap what this third report is to address if Oracle wants to argue these points on damages:

Just because the Oracle v. Google case has not been set for trial (and won't be until at least the time at which Oracle provides its third attempt at a damages report) does not mean the court can't move the case along, and that is what Judge Alsup has done with his latest order. In an attempt to narrow the issues to be argued at trial, Judge Alsup's latest order (708 [PDF; Text]) focuses on the copyright issues and directs the parties to provide opening briefs in which they identify each remaining claim of copyright liability and the affirmative defenses to each such claim. In addition, the parties are to identify those issues that should be resolved by the court and those underlying facts that first need to be decided by the jury.

This order adds to a somewhat lengthy litany of filings due from each party under various orders in effect at this time. The timeline for those responses is:

I'm seeing a couple of articles about an initial determination by the ITC against Barnes & Noble on its patent misuse defense, and there's quite a lot of spin on the ball, thanks to the usual suspects. They are reading a lot into a title of a sealed document. I see many misstatements.

So I'll explain a little about the process, so you can understand it. For one thing, the title of the sealed ITC initial determination is called an *initial* determination for a reason. It means it isn't final. The final one comes later. Initial determinations can be reviewed by the full ITC if the defendant petitions for review and even one Commissioner says yes.

Litigation isn't like football. It is rarely suddenly over.

Most importantly, the materials and depositions Barnes & Noble is seeking in discovery from Nokia and MOSAID have not yet arrived, although the ITC did grant Barnes & Noble's motion to ask Finland and Canada to provide them, and that's still ongoing, so there is likely more to go, even at the ITC. So with those materials not yet in hand, Microsoft's statement today that this means the defense is meritless is... well... to put it kindly premature. I mean, if a determination is made without the complete record being available, what does it mean?

Judge Alsup has considered the joint submission by the parties on the subject of patent marking as well as their supplemental filings (706 [PDF; Text]), and he has come out firing at Google. In a strongly worded order (707 [PDF; Text]) the court has strongly criticized Google for failing to live up to its obligations under the joint stipulation entered by the parties with respect to evidence of patent marking, declaring it:

[I]t is manifestly clear that Google failed to comply with its own stipulated procedure. Fortunately for Google, they will get another opportunity to comply.

Oracle and Google have now filed their joint statement on patent marking (706 [PDF; Text]) as required by the court's supplemental order of December 6 (641 [PDF; Text]) Although reading the joint statement may give one the impression that the parties' positions are far apart (and they are), that doesn't mean that the joint statement hasn't closed the gap on the marking issue. In fact, it appears to have closed the gap significantly and in Google's favor.

You will recall that after the Judge Alsup issued his December 6 supplemental order the parties filed a joint stipulation on what they were to do. That stipulation provided:

B&N and Microsoft have come to an agreement about Steve Ballmer's participation in the Microsoft v. Barnes & Noble action at the ITC. They were arguing about it, and they've now agreed that Ballmer will not have to testify live at the ITC hearing, currently scheduled for February. Instead, B&N will present designated portions of his deposition, and Microsoft's lawyers have sent a letter [PDF] to the ITC stating officially that it withdraws its motion for a protective order, attaching to the letter a proposed schedule on the parties' next steps in figuring out exactly what each side wants in the way of details. This means there will be no further motion practice on the live testimony issue. But it does mean that Microsoft's effort to have Ballmer avoid being deposed ended with him being deposed.

Meanwhile, I took some time to try to understand why Barnes & Noble is fighting with such vigor, when a patent misuse defense is so hard to win. What do they know that I didn't? I will share with you what I've learned.

The court has sided with Google on two of the three remaining claims construction issues. In an order (704 [PDF; Text]) issued yesterday the court interpreted two terms to have the meaning ascribed by Google and overruled the definition advanced by Oracle. The court has elected to leave the third term for consideration at trial, if necessary.

"Oracle America, Inc. will submit a damages report
in accordance with the terms set forth in the Court's Order."

With that short statement [PDF] Oracle advised the court today that it will undertake a third attempt to produce a satisfactory damages report and that it will do so in compliance with the orders of the court. I have no doubt they will produce the report. Whether they will be able to restrain themselves in the manner directed by the court remains to be seen. If past history is any indication, don't hold your breath.

Facing numerous filings that either seek to dismiss MOSAID's claims altogether or to block MOSAID from filing a second amended complaint, MOSAID has now responded with a raft of responses. Of course, MOSAID believes the law is on its side and that all parties should remain in the conjoined suit and all of MOSAID's new claims added in the second amended complaint should be permitted. How the court decides these issues will largely determine whether this ends up as one suit or multiple suits. In any case, don't expect MOSAID to back down.

Nokia continues to struggle mightily to get free from Barnes & Noble's discovery requests. Barnes & Noble, you'll recall, succeeded in persuading the ITC to recommend that Finland help it to do depositions of some Nokia executives, including Stephen Elop, and also get its hands on some documents that Nokia isn't willing to provide voluntarily.

So the necessary request documents were sent to Finland, and then Nokia started going wild with efforts to block. And it continues to do so, telling the court all the steps it's taken, and asking ITC to quash the Barnes & Noble motion or in the alternative to advise Finland that it can't provide any discovery until the motion is ruled on. Nokia also has complaints about what it represents to both Finland and the ITC as being Barnes & Noble's misstatements about the case.

And now Microsoft has asked the court to quash a motion to depose Steve Ballmer. It's under seal, but I'm sure we can guess at its contents. After all, we've seen companies try to keep their executives from having to get involved in litigation before, and so far, they all had to testify. Remember SCO v. IBM? Sam Palmisano had to testify because he had "unique personal knowledge", or so the judge believed. If the CEO knows things other people don't, no matter how busy he is, he will likely have to testify. I'm sure Microsoft lawyers know that, so in the alternative, they ask that he be allowed to testify by videoconference.