Groklaw

UPDATE: The jury verdict is in. They found no infringement of the patents!

Google has a statement already: Today's jury verdict that Android does not infringe Oracle's patents was a victory not just for Google but the entire Android ecosystem. Our reporter provides this:Clerk:

Question 1: has Oracle proved by preponderance of evidence that Google infringed?

Claim 11: not proven
27: no
29: no
39: no
40: no
41: no

Question 2: not proven

1: no
20: no

Question 3: no answer, no response, not applicable. Unanimous. The jury is dismissed. There will be no damages phase for them to endure. And there was only one juror holding out for Oracle. We also learn that in the copyright phase, it was 9 to 3 for Google on fair use. See Dan Levine's tweets in Update 2. In short, Oracle has lost big time so far.

The latest reply briefs on the outstanding copyright issues are due today, and Judge Alsup has made a last minute addition to what he wants the parties to address. (1188 [PDF; Text]) He has now thrown in Sony Computer Entertainment, Inc. v. Connectix Corp. (Sony reproduced below, see UPDATE) Specifically, he wants to hear from the parties what it was that Connectix duplicated and whether it included application binary interfaces and/or names that would have been in the Playstation BIOS source code.

What would you expect to happen next in the Oracle v. Google patent litigation phase? How about another note from the jury this morning? Ginny LaRoe: Jury Note: For the purpose of patent 104, do claims cover a symbolic resolution anywhere in the data fields? Can you guess the lawyers' response? You are right! They don't agree. Oracle yes; Google no. And so another typical day in the jury deliberations at the OraGoogle trial commences.

The Court has asked the parties to provide further briefing on the subject of interoperability. (1181 [PDF; Text]) It is unclear whether this line of questioning indicates some likelihood that the Court considers APIs protectable by copyright, but there is certainly that possibility.

In the meantime, the questions being asked by the jury in the patent phase give every indication that the jury is hung on the issue of patent infringement. Numerous times over the last two court days the jury has asked to have the instructions read to them again or to have certain phrases interpreted.

You'll be happy to know that mirror_slap is in the courtroom for Groklaw today, and so we'll be getting all the details. Meanwhile, according to Rachel King of CNET the jury has asked for a readback of the answer from the judge to an earlier question. I hope it isn't the one I thought he was unclear on myself, and I know the answer, but he now has told the jury that if they are still not clear, they can ask another question. I think they drew the impression that they can't consider Dr. Terence Parr's testimony as evidence that Google doesn't infringe Oracle's patent, and of course that is precisely what his evidence was for. If the jury misunderstands and thinks it can only consider Dr. Mitchell's testimony for Oracle as being somehow true, which some of the tweeting journalists thought had been told to them, they are going to have been seriously misled.

And we have our first report from the courtroom. And now I see that the question was actually two questions, one possibly the one that worries me or the one from Friday about a unanimous verdict, and the other is about definitions regarding one of the patents.

I can't find it on Oracle's website any more, but thanks to Internet Archive, we can find Sun Microsystems writing about software patents in 2006 and explaining its position. This was back when the European Union was for a while considering adopting software patents. You will not believe what Sun's position was. It's definitely relevant to the Oracle v. Google litigation.

Sun's position paper was titled, "Software Patents: A European Union (EU) Directive on the Patentability of Computer-Implemented Inventions must not Jeopardize Interoperability." The title says it all, but I'm going to show the entire statement to you in all its glory, so Oracle can't pretend, as it tried unsuccessfully to do with the Jonathan Schwartz corporate blog, that it wasn't an official company statement. Sun strongly urged that Europe, if it adopted the Directive, "allow for the creation of products which can interoperate with the protected products to safeguard competition in the sector and to provide greater choice and lower costs for consumers."

Imagine that. Sun said publicly that interoperability was more important than IP rights, even patents, because it led to competition and hence greater choice and lower costs for consumers.

I'm so excited to tell you that we have all the publicly available trial exhibits from the Oracle v. Google trial. We should thank this judge, the Hon. William Alsup, because he is the one insisting on keeping the trial as public as possible. I know you join me in saying thank you for this treasure.

Now, logistics: there are a lot of them, and I could use your help.

The day begins with the juror who got sick yesterday being dismissed from the jury, after she called in sick. You only need six, and the reason the judge started with 12 is precisely to be able to smoothly handle such events. But I'm sure both sides are wondering if they just lost a supporter or two.

A reader left a comment yesterday, with contact information, on possible prior art. Even though it's too late for this trial, it's never too late to bring prior art to the attention of the USPTO, and who knows what will happen in this case and in Oracle's moves thereafter. Plus the '104 patent has been found preliminarily invalid, but there are further steps to go, so it might be useful. And while Google isn't relying on prior art in this trial on the '104 patent or the '520, instead saying it doesn't use the technology described in the patent, what if Oracle has plans, if the jury brings in a verdict for Oracle on the patents, to go after others? Also, if the '104 patent is finally found invalid by the USPTO, any damages linked to that patent will be wiped out. So I wanted to highlight the comment, just in case it's useful.

Responsive briefs are almost always more interesting than the initial briefs because you gain some insight into the weakness or strength of a party's arguments by the ability of the opposing party to poke holes in that argument. That is certainly the case with respect to the responsive briefs filed by the parties in this case on the subject of the JMOL motions.

You have to love it when a quote from "Through the Looking Glass" shows up in a brief. In this instance it is Google's sole response to Oracle's suggestion that "[a] reasonable jury could only find that Google did not infinge the asserted claims of the 104 patent" by quoting:

Not surprisingly, the Court has kicked out Google's JMOL on ownership and registration of the copyrights by Oracle. (1165 [PDF; Text]) This was always a bit of a stretch, more because of timing than the actual issues raised. Had Google challenged the registration much earlier in the proceedings or challenged the actual registration with the U.S. Copyright Office, they may have had a chance here, but this motion came far too late.

Both parties have filed their briefs in support of their JMOL's on patent infringement. The Google brief (1166 [PDF; Text]) focuses on their primary arguments for non-infringement. Much of their non-infringement defense on the '104 patent hinges on the definition of "symbolic reference." The definition adopted by the Court clearly favors Google. The non-infringement defense on the'520 patent focuses on the dx tool and Google's assertion that it does not simulate execution.

The jury continues to deliberate in the patent phase of the Oracle v. Google trial. They just sent in a question, basically asking if they are allowed to consider an aspect of Dr. Terence Parr's testimony as evidence that Android does not do what the '520 patent describes, which of course they are, as Google points out. That was the point of his testimony, and it's in evidence so it's fair game to consider it.

The judge asks both sides if they want a five-minute-each opportunity to argue the point before the jury, and Oracle says no. So he just tells the jury that he can't give them guidance on fact issues other than what he's already given them. That's their job. He tells the lawyers if he says yes, because of the exact wording of their question, they'll think he's telling them to find for Google. Judges do have to be very careful not to tilt the field. Surely, however, there's a way to answer the question with a yes, without tilting things. They are for sure allowed to consider that testimony and drawing whatever conclusions they think would be proper.

I can't imagine what the jury is thinking now, but I surely do see all the appeals issues mounting and mounting. And it's very clear that once again this is a jury that is divided and struggling to reach a unanimous conclusion. Our reporter in the courtroom provides us with the details.

The parties have just submitted a proposed stipulation on copyright damages, and Judge Alsup has already accepted it. The ordered stipulation:

The jury is out on the issue of patent infringement, and the instructions issued to the jury (1153 [PDF; Text])are more favorable to Google than originally drafted. Gone are the references to "blind willfulness" and included are the definitions more favorable to Google than to Oracle. The Special Verdict Form (Text) is shortened as well given that the parties stipulated to indirect infringement on a finding of direct infringement.

The parties have also teed up their list of witnesses for the damages phase, assuming there is one. Oracle, as expected, is going to drag in Larry Page and Eric Schmidt, and what would we do without hearing from Tim Lindholm one more time. (1154 [PDF; Text]) Google's list is far shorter (1155 [PDF; Text]), and Google indicates they will only call Prof. Astrachan if Oracle calls Prof. Mitchell.

Our first report from the courtroom is here, and it seems real life has thrown a little tack in the road. One of the jurors had car trouble, so after the judge and the lawyers finished their early morning discussions and called for the jury, no jury. So, they waited. When the difficulty couldn't be resolved to get her to the court, she was removed from the jury by the judge. This is juror #2, according to the tweeting journalists. And then the closing statements began.

The discussion before all that is a bit disturbing. Google apparently complained about Oracle's ambush tactics, and the judge laughed it off. It isn't so funny if you are Google. And not all judges find such tactics amusing, either. If you recall, SCO, represented by Boies Schiller, who now represent Oracle, were sanctioned by the court for trying to use ambush tactics in SCO v. IBM. Actually, they were sanctioned twice. They kept changing what their case was about, presenting new allegations at the last minute.

The further we go into the this trial the heavier the paperwork has become with no fewer than 26 documents on today's list. Because of that volume we will not be able to address all of them in detail or provide them in text, at least initially, but here are the highlights:

Motions for Judgment as a Matter of Law - Patent Phase

Both parties have filed a motion for judgment as a matter of law with respect to the patent phase of the trial. For its part, Google argues (1151 [PDF]):

The judge has ruled on the weird Oracle motion [PDF] to delay the damages phase of the trial to get a new jury. It's a no from Judge William Alsup, also calling their position on the 9 lines of code and the test files and damages "super extreme". They'll have to present it to *this* jury. There's no way the law should allow a disgorgement theory over millions or billions of dollars for nine lines of code, the judge tells them, our man in the courtroom tells us. The 37 APIs will not be part of phase three, "because liability has not been proven on that". So that's that. Google's motion for summary judgment on copyright damages [PDF] is also denied. It's on to the damages phase after closing statements by tomorrow, with this jury. Meanwhile, Google expert Dr. David August, who testified on Friday, is back on the witness stand.

We've all seen the fur flying on the issue of copyright infringement damages with respect to rangeCheck and the decompiled files. It's worth stepping back and putting this into perspective, and it's also worth considering the arguments advanced.

First, the perspective. The jury found rangeCheck infringed. The jury also found the decompiled files not infringed, but Judge Alsup, on Oracle's motion for judgment as a matter of law, has overruled the jury on that one. So both rangeCheck and the decompiled files are infringing. For our purposes, let's set aside everything else (e.g., the SSO) as being unresolved, either because the jury was unable to reach a determination (the jury WAS in agreement that the SSO was infringed but not in agreement on Google's fair use defense) or because the Court has yet to rule on an issue of law (e.g., whether an implementation of a specification constitutes a derivative work of that specification). Those unresolved copyright infringement issues are more important than the issues that have been resolved.

PJ has separately covered the more important filings from the weekend, namely Google's motion for summary judgment on the damages issue with respect to rangeCheck and the decompiled files and Oracle's motion to delay phase 3 of the trial until the copyright liability issues are settled, there were a few other filings. One of those was the Court's ruling in favor of Oracle (and overturning the jury) on the issue of infringement of the decompiled files. (1123 [PDF; Text]) The Court has also issued another draft of the proposed jury instructions for the patent infringement liability phase of the trial. (1120 [PDF; Text]) These revisions incorporate some of the suggestions from the parties with respect to the first draft.

Google has filed a motion for Summary Judgment on copyright damages, arguing that Oracle has no evidence that Google gained anything financially that can be linked to rangeCheck or the test files: Oracle has no evidence, and cannot possibly prove, that Google earned any revenue causally linked to either the nine lines of rangeCheck or the eight superfluous test files. That is, of course, obviously true. The judge said he was going to tell the jury that, in fact. How can Oracle win infringer's profits if there aren't any?

So Oracle has now filed a motion asking for a postponement of phase three of the trial, the damages phase. It would like a new jury, too. It wants to wait to calculate damages until after the judge decides whether APIs are copyrightable, so it can add the 37 API files into the mix for damages, if they are. Maybe then it would have a prayer of getting some money.

In short, Oracle woke up and realized it's in a pickle of its own making. It was too clever by half, and now reality has struck. It clearly is worried that if they go to the damages phase now, it will gain a big fat zero in damages. It should have thought of that before it asked for infringer's profits, but there you are.

Today's reporter for Groklaw at the Oracle v. Google trial has filed his reports, three of them so far, and they are voluminous. You will enjoy his thorough account of the day's events.

I saw the tweeting journalists saying, Oh no, more code. But that's exactly what you want. The journalists zone out, but what I see in the notes is that the judge is paying very, very close attention, enough to ask meaningful questions. So, enjoy. I'll keep adding to the reports, but I have the first one done. [They're all done now.] Witnesses today were Andrew McFadden, Terence Parr, and David August, all Google's witnesses, providing expert testimony that Google didn't use Oracle's patented technology.

One bad news bit for Google: the judge has granted Oracle's motion for judgment as a matter of law on the directly copied test files, in question 3b of the jury's instructions, that they had decided Google didn't infringe, overruling their opposite finding. And here's the order [PDF]. The judge seems to be going to great lengths to ensure any appeal will not require a new trial.