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Judge Orders the Court's Expert to Wait to Finish his Report in Oracle v. Google - Oracle Must be Nervous ~pj
Friday, March 09 2012 @ 09:42 AM EST

There is no decision yet from the judge on Google's motion to strike portions of Oracle's third attempt to come up with an acceptable damages report in Oracle v. Google. But the latest news is that right after the hearing on Wednesday, the judge filed an order that the court-appointed expert, Dr. James Kearl, hold off on finishing his report. That's of interest, because in the hearing, the judge asked Kearl's lawyer if the report would be finished on time. So something seems to be up.

Thus spake [PDF] Judge Alsup:

Dr. James Kearl should wait to finish his report and not release it until further order from this Court.
Now, you can't reliably predict what a judge will do from signs on the pathway. All you can do is say what you think he *should* do, but still, if you were Oracle, wouldn't you be sweating bullets? Earlier, if I recall correctly, the same judge told the parties that until Oracle filed an acceptable damages report, there'd be no report from the court's expert. And do you remember at an earlier hearing, the judge said there was consensus at a conference he went to among all the judges and patent lawyers in attendance that damages in patent cases were getting out-of-hand?
Everyone in the room, Judge Rader, everyone, they were talking, these damages reports are out of control, we got to do something about it.
One of Oracle's lawyers, Michael A. Jacobs of Morrison & Foerster, was there at that conference, presumably in agreement, according to the judge's account. Yet, Oracle keeps asking for huge numbers in its reports. I think we can now assume, from this order, that the judge wasn't looking too favorably on Oracle's efforts or at least is having deep thoughts about the way forward.

The document and the minutes of Wednesday's hearing:

03/07/2012 - 775 - Minute Entry: Motion Hearing held on 3/7/2012 before William Alsup (Date Filed: 3/7/2012) re 718 MOTION to Strike Portions of Third Expert Report by Iain Cockburn and Expert Report by Steven Shugan; Memorandum of Points and Authorities in Support Thereof filed by Google Inc. Motion taken under submission. (Court Reporter Kathy Sullivan.) (dt, COURT STAFF) (Date Filed: 3/7/2012) (Entered: 03/07/2012)

03/07/2012 - 776 - NOTICE TO DR. JAMES KEARL. Signed by Judge Alsup on March 7, 2012. (whalc1, COURT STAFF) (Filed on 3/7/2012) (Entered: 03/07/2012)

I can't understand why Oracle keeps asking for such huge damages, especially when the cards it's holding are so bad, as it turns out, or why it keeps on defending doing things its way instead of the judge's, when the judge has made it clear how he feels, that Oracle has been overreaching.

I'm afraid it might mean Oracle's legal team, which includes Boies Schiller, plans to drag this through a lengthy appeals process until the end of time, again, just like in the SCO saga, where SCO was also represented by Boies Schiller. Or maybe they think that the judge warns but never actually follows through? He warned they'd get no third try if they failed on the second draft, and yet he gave them a third chance after all. So perhaps they think he doesn't mean what he says. I think that would be a mistake, after watching this same judge in the Apple v. Psystar case.

How are damages supposed to be figured? I didn't know myself, not being a patent expert, but I came across a filing [PDF] in another current patent case, Apple v. Motorola (1:11-cv-08540, before Judge Posner in Illinois, Northern District), that I found helpful. Perhaps you will too. It's a filing by Motorola, but it lays out what it views as the state of the law on how to calculate damages. Being advocacy, not a ruling by a judge or jury, you can assume they are trying to make a point, but the cases are explained well, so I think you'll find it helpful in understanding the arguments at Wednesday's hearing in Oracle v. Google. At least, I did.

What happened is, I was curious why Apple was putting out stories that it was open to settling with Motorola and others. So I took a look at that docket, and sure enough, Apple seems to be getting what one might call "The Oracle Experience". That's where you file a patent infringement suit against a competitor, and they fight back in a way you didn't expect and you start to lose. And that's when you *should* try to settle, frankly, before you lose badly.

Years ago, Dan Ravicher, Esq. told me that he wasn't too worried about Microsoft or anyone suing over patents, because there wasn't enough money in patent litigation to make it worth their while. That was before juries started to go wild. He also told me that there was a lot of prior art that no one in the proprietary world was taking into consideration, prior art that the community had safely in its back pocket. And that surely has proven true. It's not in the USPTO databank, but it's out there in the real world, because FOSS developers were the mapmakers of the Internet and the digital world. Remember when Bill Gates finally understood that the Internet mattered? Well, guess who had already built it? And they are pretty much all still alive, so when some company stakes a claim of ownership of some tech, they say, "Huh? You were not the first". And they know just where to go to find the evidence.

At the time, I was hyperventilating over Microsoft's patent ambitions, which I foresaw, and I was trying to get others to see the danger I saw on the horizon. I must say, Microsoft has done pretty much what I thought it would, and worse, but Dan's point proved to be true. Look at the patent aggressors. What in the world is the payoff for this noxious strategy? Oracle's patents have been dropping like dead flower petals, and it's hard to win if all you have on the table is dead patents. Of course, we know from watching Boies Schiller in action in the SCO saga, and in the weird Florida gardener case, that they persist long after it seems reasonable. Sometimes that pays off, but mostly it just leaves an ugly bruise.

The odd thing is Oracle, historically, didn't approve of software patents. As a friend, may I say to Oracle, look at how things are going, and *think*. You had it right before. And if Oracle wins on the API claims, it's going to alter the software industry radically, where only a couple of large companies get to keep everyone else out of competition by controlling access on a whim. Copyrights last for a lifetime and more, so imagine the stagnation.

Apple too. It's obvious Apple doesn't need patents to win in the marketplace. It wins on quality, the real beauty of its products, as well as by vendor deals, and its constant innovation, sometimes incremental, sometimes in astonishing leaps. That's enough to stay a leader. And it's how a company *should* win. Microsoft isn't in that fast lane, so it can't do that, but Apple can, so why follow in Microsoft's unpleasant footsteps? It's affecting the Apple brand. And look what's happening with Microsoft's patents. Nothing is working out well for the patent aggressors so far.

I know. They won't listen to me. But at least I felt I should say it. Settle, by all means, everyone, and put this stupid smartphone war down. It's hurting everyone. Patent aggression is offensive, and it's costing everyone, as I knew it would.

To Google's credit, it has not gone around suing its competitors, only responding defensively. Sometimes you hear people cynically talk about "Don't be evil," but seriously, look at the smartphone wars. Where's the evil? Google takes punches and then defends itself, but it isn't following a "win by patents" strategy of aggression against its competition.

The real solution is an end to software patents altogether. Let's learn from the smartphone patent mess. Software patents are a tax on innovation, a drag on successful companies, whereby the wrong people end up with unearned gains, and folks trying to actually make great products have to pay greedy people instead for absolutely nothing they wanted or need, at worst, or pay to avoid having to hand over money that could go to more innovative products but instead goes to lawyers to fight to protect against those who can't innovate but can work the patent system to skim off the top of other people's success. That is the real villain in this picture.

Being a success has a tax on it now, the Software Patent Tax. And, thanks to the smartphone patent wars, we've seen now the quality of these patents being wielded as weapons. Barnes & Noble showed us the low "quality" of Microsoft's patents in that litigation. Didn't you find it either jaw-droppingly horrifying or utterly hilarious to think of Microsoft getting victims to sign up for patents like that? My reaction was to say, "Well, so *that's* why Microsoft is always so secretive about what patents it claims are being infringed."

Now Oracle is losing the very patents they thought would bring Google to its knees. And Apple is not reaping the results they dreamed of by a long shot. But if you are not one of the players caught up in the patent wars, just a member of the public, don't you want ridiculous patents to be tossed overboard? I do.

I actually want more than that, an end to this dangerous and harmful experiment in allowing software patents to issue at all. It was a mistake, and I hope folks realize it before it's too late, now that we are reaping the whirlwind.


Judge Orders the Court's Expert to Wait to Finish his Report in Oracle v. Google - Oracle Must be Nervous ~pj | 222 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Corrections thread
Authored by: johnE on Friday, March 09 2012 @ 10:04 AM EST
Use BAD -> good.

[ Reply to This | # ]

Off topic thread
Authored by: johnE on Friday, March 09 2012 @ 10:07 AM EST
Any on topic posts will be castigated.

[ Reply to This | # ]

Newspicks here
Authored by: johnE on Friday, March 09 2012 @ 10:10 AM EST
Put article title in subject line, include clickies

[ Reply to This | # ]

Comes transcriptions here
Authored by: johnE on Friday, March 09 2012 @ 10:11 AM EST
I'm sure there are a few waiting patiently.

[ Reply to This | # ]

Apple wins on innovation?
Authored by: Anonymous on Friday, March 09 2012 @ 10:20 AM EST
Apple has not been all that innovative in the last years (and to be fair: a
large and functioning company has limits in that area). They win on design and
packaging. Creating an actual _product_ from functionality.

[ Reply to This | # ]

Authored by: hardmath on Friday, March 09 2012 @ 10:39 AM EST
This word didn't seem to come up explicitly in Judge Alsup's
hearing on Oracle's third try at a damages report, but it's
just below the surface.

Cherry-picking (in statistics) is selective choice of data
points to reinforce a preconceived hypothesis.

So when Judge Alsup remarked that he couldn't believe Oracle
didn't think he'd notice the omission of Barney in the
damages skewing estimates, that was a cherry-picking issue.

When Oracle responded to Google's complaint that 24% of the
Shugan survey said they were indifferent to or in favor of
paying twice as much for a phone with identical features by
saying "just take out the 24%, it doesn't change the results
that much", that was a cherry-picking fiesta.

It is unfortunate for Oracle they could not cherry-pick the
judge in this case. They seem to have gotten one who
"know[s] who Bayes is" and who understands the statistical
stuff too well to be snowed by Dr. Cockburn's vocabulary.

regards, hm

Do the arithmetic or be doomed to talk nonsense. -- John McCarthy (1927-2011)

[ Reply to This | # ]

The Court's Expert
Authored by: rsteinmetz70112 on Friday, March 09 2012 @ 11:00 AM EST
I think the Judge is about to direct some very specific questions to His Expert
and expect straight answers to them in the report. that way the Expert wil have
time to research and explain the answers, something it would be hard to do in a
deposition or at trial.

Rsteinmetz - IANAL therefore my opinions are illegal.

"I could be wrong now, but I don't think so."
Randy Newman - The Title Theme from Monk

[ Reply to This | # ]

Hold off = Oracle Concern?
Authored by: qrider70 on Friday, March 09 2012 @ 11:10 AM EST
I am curious why you might think the Judge's order to hold off on the report
should concern Oracle. IANAL, but if the theme has been that Oracle's report's
acceptance = no report from Dr. Kearl, wouldn't this order imply that perhaps
the report will be accepted?

I realize the information we have seems to indicate that the Judge had many
questions for Oracle. But it just occurred to me that it could possibly convey
opposite. I hope not, but just wondered.

But as another poster commented, maybe the Judge wants other things to be
added to the report, so he wanted Dr. Kearl to hold off. That is another

Just wondered.

[ Reply to This | # ]

Only a Couple of Large companies in control
Authored by: Anonymous on Friday, March 09 2012 @ 11:42 AM EST
"where only a couple of large companies get to keep everyone else out of
competition by controlling access on a whim."

Microsoft, Apple, Oracle... They think *they* will be those large companies.

[ Reply to This | # ]

Origins of Software Patents in the U.S.?
Authored by: Anonymous on Friday, March 09 2012 @ 12:08 PM EST
PJ wrote:

"I actually want more than that, an end to this dangerous and harmful
experiment in allowing software patents to issue at all."

It's been reported many times here in Groklaw that prior to c. 1992 (?) there
were not any Software Patents. Then, something changed.

What was that "something"? Was it bureaucratic (USPTO change of
direction), case law precedent, or was it based on Enabling Legislation?

[ Reply to This | # ]

What does it all mean?
Authored by: Ian Al on Friday, March 09 2012 @ 12:09 PM EST
From our intrepid reporters at the end of the hearing,
Judge: Question for John Cooper -- if we set a trial for March 16, will the expert be prepared?

John Cooper: Yes.

Judge: Will it include a critique?

John Cooper: Yes.
The order, on the same day as the hearing,
Dr. James Kearl should wait to finish his report and not release it until further order from this Court.
I have known for ages that the trial would happen late in the Autumn. The judge's question to John Cooper really shook me.

John Cooper's reply virtually shouts that the report is all done and dusted and ready for trial in nine days.

At the end of the hearing the judge appears to think that he can deal with the third damages report and be ready to start the trial in nine days. Later that day, he changes his mind.

If Oracle had seen sense and decided to sue for peace... seek a settlement, I think the judge would have made an order cancelling the trial date and setting a time scale for the completion of the settlement agreement.

If the judge has decided that all three damages reports have to go, then he might want an alternative expert report from Dr. Kearl in place of the current report, rather than leave Oracle without a damages report, but with Cockburn verbally spouting stuff in front of the jury that the judge considers is just plain wrong.

Would this explain Dr. Kearl having to delay his current report and would this also mean a certain amount of motion practice from Google and Oracle in order to permit a challenge to parts of the report?

I have announced that SCOG are doomed four times so far with a 50% success rate, so I might be right or I might be wrong.

Ian Al
Software Patents: It's the disclosed functions in the patent, stupid!

[ Reply to This | # ]

Judge Orders the Court's Expert to Wait to Finish his Report in Oracle v. Google - Oracle Must be Nervous ~pj
Authored by: tknarr on Friday, March 09 2012 @ 12:12 PM EST

Personally, I think the problem with software patents isn't that they're patents on software. It's two-fold: that they're bad patents, and that there's no consequences for trying to use them to extort payments.

Up front, we need to make it easier to challenge bad patents regardless of whether they're software patents or not. The courts need to start applying rulings like KSR v. Teleflex. Defendants need to start being aggressive about using those rulings, and making judges either apply them or be clear about why they're not applicable to a particular case when it seems they should be. In particular, the old "nobody's written it up in a very formal way, so it must not be obvious" argument needs shot down. Usually the most obvious things aren't formally written up because they're so obvious nobody sees a need to write up what everybody already knows. And "do it on a computer" should be shot down as an argument on general principles, the whole point of computers is to take things that're already being done and do them faster and more conveniently and applying that idea to any particular thing that's already being done should be considered prima facie obvious. The burden should be on the plaintiff to show that either using a computer to do some common operation isn't obvious or that there's something they're doing beyond merely implementing a common operation on a computer.

Beyond that, we need to impose penalties for trying to play the Danegeld card. Right now you can file a lawsuit and impose costs on the defendant, and if it turns against you you can walk away without any real costs beyond what you've had to pay your attorneys. Even if you can't walk away, often you can settle and even if you have to pay off the defendant you can make the settlement confidential and spin it as "We sued them and they were so scared of our case they settled rather than face a court ruling." without facing any counter. I'd make a couple of changes to procedures. Firstly I'd strictly enforce Iqbal, with significant sanctions against attorneys who file bare declarations of claims with no supporting evidence provided. Secondly, I'd make awarding of costs and fees to defendants much more normal when the plaintiff withdraws part or all of their case prior to trial. It shouldn't be automatic, but there should always be an automatic evaluation of whether the plaintiff's position is reasonable. They can withdraw the claims at the first point where it becomes clear they're not supported by the evidence on the table, but any plaintiff keeping a claim on the table beyond that point should face the near certainty of having to pay the defendant's costs and fees if they're not willing to take that claim to trial. Thirdly, at the end of discovery the judge should ask each side "Are you ready and able to go to trial with this?". The only acceptable answers are "Yes." and "No.". If the plaintiff doesn't answer "Yes.", judgement including all costs and fees in the matter is awarded in favor of the defendant. If plaintiff answers "Yes." and defendant doesn't answer "Yes." too, judgement is awarded in favor of the plaintiff and the judge gets to decide on damages per normal procedures. And lastly, I'd make one basic change to settlements: once a suit is filed, any settlement's terms are part of the court record and may only be sealed upon a showing of exceptional circumstances by some party. No more confidential settlements on the courthouse steps, once you've taken up public judicial resources you'd better expect the outcome to be public too. If you don't like that, settle it without involving the courts.

[ Reply to This | # ]

Then there's Pollyanna
Authored by: mexaly on Friday, March 09 2012 @ 12:36 PM EST
BS&F do keep themselves busy. At least, they can only handle a small number
of cases.

The free-as-in-speech internet is an unstable situation. Capitalists are used
to controlling the capital, but the Internet has no owner. Now they're trying
patents and copyrights, but again, no owner for the overall technology.

Oracle and Microsoft are about control. Google and Apple are about
accessibility. The battle will be there as long as there is an uncontrolled
asset, the Internet.

Clamp down on the Internet, and things could change quickly. (Viz Lessig's

Maybe we really need patent and copyright battles, to keep the Capitalists

IANAL, but I watch actors play lawyers on high-definition television.
Thanks to our hosts and the legal experts that make Groklaw great.

[ Reply to This | # ]

Judge Orders the Court's Expert to Wait to Finish his Report in Oracle v. Google - Oracle Must be Nervous ~pj
Authored by: Anonymous on Friday, March 09 2012 @ 01:56 PM EST
Couldn't this mean, that Oracle told the judge, that they
still "believe" in their patents, and that the judge
therefore postpones the start of the trial?

(Giving himself and John Cooper more time for the third

(After all Oracle had to respond until noon, 9th of march)

[ Reply to This | # ]

Judge Orders the Court's Expert to Wait to Finish his Report in Oracle v. Google - Oracle Must be Nervous ~pj
Authored by: PolR on Friday, March 09 2012 @ 02:54 PM EST
This makes me wonder why the judge wanted Cockburn in his court. He didn't ask
him any question. Did he wanted to make sure Cockburn personally heard the
hearings? As if the judge didn't trust Oracle lawyers to pass the message
correctly? As if the judge wanted Cockburn know why he is dissatisfied? For what

[ Reply to This | # ]

An API is an instruction set
Authored by: jbb on Friday, March 09 2012 @ 06:19 PM EST
The judge's comment that he knows who Bayes is (which impressed me greatly) made me start to think about a precise, mathematical definition of what an API is. It is an instruction set and as such it is a language. It is a mapping from a set of signatures (loosely called instructions or commands) to a set of precise meanings. Each instruction is a signature plus a meaning. This is why some of us laugh our hats off when a lawyer says the order and arrangement of an API is worth millions and millions of dollars. That's just like saying the order and arrangement of an instruction set is worth millions of dollars.

A signature for an instruction is a recipe for how to distinguish that instruction from all others (I'm using the word more generally than it is typically used to describe APIs). Sometimes a single instruction will have more than one signature depending on the context. In assembly language the signature contains the name or mnemonic such as add. It can also contains the allowed operands for the instruction. That same instruction has an op-code signature which is a numerical pattern that uniquely matches the instruction. CPUs use these numerical patterns which are often called machine-code. The important thing is that each instruction must have a unique signature in the sense that there must be enough information to distinguish between instructions.

The other part of the instruction is the meaning that is attached to the signature. The mapping between signatures and meanings is what defines the instruction set. For example, one time when I was in a big hurry to get a project done I created a language (an instruction set). I gave the same language to two different teams. One team wrote things in the language while the other team implemented the language. This only makes sense if each instruction has a uniquely identifiable signature and if each instructions has a precise meaning. The language, or instruction set, is the mapping between signatures and meanings.

Given these definitions an API is an instruction set, not just in some word twisting technical way but at its very core. I would not say an API is a language. It is an extension or a dialect of an language. Let's say I wrote a fancy library to implement some cool and groovy thing called FooBar. I could then write an API for FooBar in several different languages. Each API would extend its language to deal with doing FooBar things. The instructions in each API would often be similar because the meanings will often be the same. But the signatures may have to differ due to differences in syntax and grammar in the underlying languages. There could be larger differences too. An object oriented interface might be very different from a function oriented interface. Yet there will always be fundamental similarities. There will be a set of FooBar meanings that will have to exist in all the FooBar APIs.

If an API in one language is protected by copyright then would any translation of that API to a different language also be protected? The signatures (and sometimes even some of the meanings) would have to be different. This is exactly what happens when a book is translated between English and Japanese. There are drastic changes yet copyright protection transcends the mere translation of a book. The same conclusion for APIs would be strange because it would mean you are copyrighting an abstract idea (the set of meanings) and not a specific implementation of that idea.

An instruction set is very different from a book. In particular, the value added by the author of book is almost entirely in the order and arrange of words while the order and arrangement of an instruction set is almost meaningless. There is order and arrangement involved but it is only in defining the unique signatures. For example a signature with java.math.abs is different from one with java.abs.math or Likewise, in Japanese, the words wa and desu are combined in the following order and arrangement:

NOUN-1 wa NOUN-2 desu.
Copyrighting the order and arrangement in the signatures of an instruction set (or API) would be like copyrighting the order and arrangement in the grammar of a language or the order and arrangement of the letters in a word.

It makes perfect sense that copyright would survive the translation of a book because the added value is in the overall structure and arrangement which does not change. On the other hand, if copyright protection of an API survives translation then that means any set of signatures that are mapped to the same (or similar) set of meanings would be protected. In essence, it is the set of meanings that is protected.

If API copyright does not survive translation then all you are protecting is a specific mapping between signatures and meanings even though everyone else is free to use their own mapping to those same meanings. In a very real sense this would be tantamount to copyrighting a set of words, or a language. If you copyright an API then no one else would be able to use these words (with these meanings) without your say-so. The whole point of a language or an instruction set or an API is to provide a common ground for communication. If you can copyright an API then you should also be able to copyright an instruction and and you should even be able to copyright a language. Of course, that is all nonsense. You should be able to copyright a book, but not the language it was written in. Likewise you should be able to copyright a program but not the language it was written in, including the API extensions to that language.

The bottom line is that an API is an instruction set that works as an extension to a language. When new things are introduced to the world, a new jargon forms to talk about these new things and the language gets extended. An API is just like that. It extends a computer language in order to use that language to talk about something new.

Shirky Principle: Institutions will try to preserve the problem to which they are the solution.

[ Reply to This | # ]

Oracle drops more patent claims
Authored by: pem on Friday, March 09 2012 @ 07:45 PM EST

[ Reply to This | # ]

Judge Orders the Court's Expert to Wait to Finish his Report in Oracle v. Google - Oracle Must be Nervous ~pj
Authored by: eric76 on Friday, March 09 2012 @ 10:43 PM EST
And if Oracle wins on the API claims, it's going to alter the software industry radically, where only a couple of large companies get to keep everyone else out of competition by controlling access on a whim. Copyrights last for a lifetime and more, so imagine the stagnation.

On the other hand, might it drive more and more companies and people toward Open Source operating systems such as Linux?

[ Reply to This | # ]

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