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Oracle v. Google - Weekend Filings ~mw |
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Sunday, May 13 2012 @ 03:00 PM EDT
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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.
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Docket
05/10/2012 - 1120 -
Proposed Jury Instructions by Google Inc. Proposed Additional Language
for Patent Jury Instruction Number 23. (Van Nest, Robert) (Filed on
5/10/2012) (Entered: 05/10/2012)
05/11/2012 - 1121 -
PROPOSED CHARGE TO THE JURY AND VERDICT FORM. Signed by Judge Alsup on
May 11, 2012. (Attachments: # 1 Draft Special
Verdict Form)(whalc1, COURT STAFF) (Filed on 5/11/2012) (Entered:
05/11/2012)
05/11/2012 - 1122 - ORDER
GRANTING IN PART AND DENYING IN PART MOTION TO SEAL (1036) by Hon.
William Alsup [granting in part and denying in part 1036
Administrative Motion to File Under Seal].(whasec, COURT STAFF) (Filed
on 5/11/2012) (Entered: 05/11/2012)
05/11/2012 - 1123 - ORDER
GRANTING MOTION FOR JUDGMENT AS A MATTER OF LAW ON DECOMPILED FILES re
1045 MOTION for Judgment as a Matter of Law Oracle's Corrected Rule
50(A) Motion at the Close of Evidence (WITH TABLES) filed by Oracle
America, Inc.. Signed by Judge Alsup on May 11, 2012. (whalc1, COURT
STAFF) (Filed on 5/11/2012) (Entered: 05/11/2012)
Documents 1124-1126 may be found here.
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Documents
1120
KEKER & VAN NEST LLP
ROBERT A. VAN NEST - # 84065
[email]
CHRISTA M. ANDERSON - # 184325
[email]
DANIEL PURCELL - # 191424
[email address telephone fax]
KING & SPALDING LLP
SCOTT T. WEINGAERTNER (Pro Hac Vice)
[email]
ROBERT F. PERRY
[email]
BRUCE W. BABER (Pro Hac Vice)
[address telephone fax]
KING & SPALDING LLP
DONALD F. ZIMMER, JR. - #112279
[email]
CHERYL A. SABNIS - #224323
[email address telephone fax]
IAN C. BALLON - #141819
[email]
HEATHER MEEKER - #172148
[email]
GREENBERG TRAURIG, LLP
[address telephone fax]
Attorneys for Defendant
GOOGLE INC.
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
SAN FRANCISCO DIVISION
ORACLE AMERICA, INC.,
Plaintiff,
v.
GOOGLE INC.,
Defendant.
Case No. 3:10-cv-03561 WHA
GOOGLE INC.’S PROPOSED
ADDITIONAL LANGUAGE FOR
PATENT JURY INSTRUCTION NUMBER
23
Dept.: Courtroom 8, 19th Floor
Judge: Hon. William Alsup
Pursuant to the Court’s invitation at the charging conference, Google proposes that the
Court add the following language to patent jury instruction number 23:
To establish willful blindness, it is not enough under the law to show that there is
merely a “known risk” that the induced acts are infringing, or that Google was
only deliberately indifferent to that risk.
The proposed language comes directly from Global-Tech Appliances, Inc. v. SEB S.A.,
131 S. Ct. 2060 (2011), the case that recognized the possibility of willful blindness being applied
to indirect infringement. Specifically, it is drawn from the following passage:
The test applied by the Federal Circuit in this case departs from the proper willful
blindness standard in two important respects. First, it permits a finding of
knowledge when there is merely a “known risk” that the induced acts are
infringing. Second, in demanding only “deliberate indifference” to that risk, the
Federal Circuit’s test does not require active efforts by an inducer to avoid
knowing about the infringing nature of the activities.
Id. at 2071 (emphases added).
Dated: May 10, 2012
KEKER & VAN NEST LLP
/s/ Robert A. Van Nest
By: ROBERT A. VAN NEST
Attorneys for Defendant
GOOGLE INC.
1
1121
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA
ORACLE AMERICA, INC.,
Plaintiff,
v.
GOOGLE INC.,
Defendant.
/
No. C 10-03561 WHA
[DRAFT]
FINAL CHARGE TO THE JURY
AND SPECIAL VERDICT FORM
1.
Members of the jury, it is now my duty to instruct you on the law that applies to this
phase. A copy of these instructions will be available in the jury room for you to consult as
necessary.
It is your duty to find the facts from all the evidence and to decide whether the side with
the burden of proof has carried that burden, applying the elements of proof required by the law,
elements I will provide you in a moment. In following my instructions, you must follow all of
them and not single out some and ignore others. You must not read into these instructions or
into anything the Court may have said or done as suggesting what verdict you should return —
that is a matter entirely up to you. I will repeat only part of the instructions I previously gave
you regarding what is and is not evidence and the burdens of proof.
2.
The evidence from which you are to decide what the facts are consists of:
1. The sworn testimony of witnesses, whether presented in person or by depositions;
2. The exhibits received into evidence; and
3. Any stipulated facts and pretrial discovery items read into evidence, such as the
responses to the requests for admissions.
3.
Certain things, however, are not evidence, and you may not consider them in deciding
what the facts are. I will list them for you:
1. Arguments, statements and objections by lawyers are not evidence. The lawyers
are not witnesses. What they have said in their opening statements, closing
arguments and at other times is intended to help you interpret the evidence, but it
is not evidence itself. If the facts as you remember them differ from the way the
lawyers have stated them, your memory of them controls.
2. A suggestion in a question by counsel or the Court is not evidence unless it is
adopted by the answer. A question by itself is not evidence. Consider it only to
the extent it is adopted by the answer.
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3. Testimony or exhibits that have been excluded or stricken, or that you have been
instructed to disregard, are not evidence and must not be considered. In addition,
some testimony and exhibits have been received only for a limited purpose; where
I have given a limiting instruction, you must follow it.
4. Anything you may have seen or heard when the Court was not in session is not
evidence.
4.
Evidence may be direct or circumstantial. You should consider both kinds of evidence.
The law makes no distinction between the weight to be given to either direct or circumstantial
evidence. It is for you to decide how much weight to give to any evidence.
5.
Certain charts and summaries have been shown to you in order to help explain the facts
disclosed by the books, records, and other documents which are in evidence in the case. They
are not themselves evidence or proof of any facts. If they do not correctly reflect the facts or
figures shown by the evidence in the case, you should disregard these charts and summaries and
determine the facts from the underlying evidence.
6.
Now I will address the burden of proof. In this phase, the preponderance of the evidence
standard applies. When a party has the burden of proof on any issue by a preponderance of the
evidence, it means you must be persuaded by the evidence that the allegation is more probably
true than not true. To put it differently, if you were to put the evidence favoring a plaintiff and
the evidence favoring a defendant on opposite sides of a scale, the party with the burden of proof
on the issue would have to make the scale tip somewhat toward its side. If the party fails to meet
this burden, then the party with the burden of proof loses on the issue. Preponderance of the
evidence basically means “more likely than not.”
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7.
On any issue, if you find that plaintiff carried its burden of proof as to each element of a
particular issue, your verdict should be for plaintiff on that issue. If you find that plaintiff did
not carry its burden of proof as to each element, you must find against plaintiff on that issue.
8.
I now will turn to the law that applies to this case. As you know, in this lawsuit Oracle
seeks relief from Google for allegedly infringing claims 11, 27, 29, 39, 40, and 41 of United
States Patent Number RE38,104 (“Method And Apparatus For Resolving Data References In
Generated Code”); and claims 1 and 20 of United States Patent Number 6,061,520 (“Method and
System for Performing Static Initialization”). I will refer to these claims as the “asserted
claims.” The products that allegedly infringe the asserted patents are certain Android mobile
devices and software and the Android Software Development Kit (“SDK”). The Android SDK
is a set of development tools that a programmer can use to develop applications for Android.
The Android SDK includes a set of libraries, documentation, an emulator for emulating an
Android device on a computer, a debugger, and a sample set of code. Oracle claims that Google
itself infringes and is also legally responsible for the infringement of Oracle’s patents by others.
Google denies that it infringes and further denies that it is legally responsible for any
infringement by others. Your job is to decide the issues of infringement.
9.
As you know, the patent claims are the numbered paragraphs at the end of the patent.
The claims are important because they specifically define the exclusive rights granted by the
patent office. The figures and the rest of the patent provide a description and/or examples of the
invention and provide a context for the claims but the claims define how broad or narrow the
patent holder’s rights are. It is often the case that a patent specification and its figures disclose
more than the specific matter claimed as inventions, so it is important to keep straight what the
specification says versus what the claims say.
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10.
In a patent, an independent claim is one that is a stand-alone claim and does not
incorporate any other claim. A dependent claim is one that depends on an earlier claim by
incorporating it by reference and then adding one or more additional elements. Such
incorporation imports the entirety of the incorporated claim, including all of its elements, into
the dependent claims. For the ’104 patent, all asserted claims are independent claims. For the
’520 patent, claim 1 is an independent claim. Claim 20 is a dependent claim. Claim 20
incorporates independent claim 18.
11.
I am now going to instruct you on the meaning of some of the words and phrases in the
claims of the ’104 patent. You must accept and use these meanings in your deliberations.
Intermediate form code and intermediate form object code: Both “intermediate form
code” and “intermediate form object code” mean “executable code that is generated by
compiling source code and is independent of any computer instruction set.”
Symbolic reference: The term “symbolic reference” means “a reference that identifies
data by a name other than the numeric memory location of the data, and that is resolved
dynamically rather than statically.”
Resolve and Resolving: The term “resolving” a symbolic reference means “at least
determining the numerical memory-location reference that corresponds to the symbolic
reference.”
You must accept these definitions as established for purposes of your deliberations and
verdict. You may, however, consider all of the evidence in the case as to whether or not the
accused product or method meets these definitions. If a witness has based his view on meanings
of the terms contrary to my stated definitions, you should discount that part of his testimony
accordingly.
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12.
Oracle has the burden of proof on infringement. Oracle must persuade you that it is more
likely than not that Google has directly infringed, induced or contributed to the infringement of
the asserted claims.
13.
A patent’s claims define what is protected by the patent. A product or method directly
infringes a patent if all limitations of an asserted claim are present in the product or method.
Each claim asserted must be separately analyzed.
14.
Oracle accuses Google of direct infringement. Deciding whether a claim has been
directly infringed is a two-step process. The first step is to decide the meaning of the patent
claim. I have already instructed you as to the meaning of some of the terms in the asserted
patent claims. The second step is to decide whether Google has made, used, sold, or offered for
sale within the United States a product or method covered by a claim of the asserted patents.
Distributing or offering a product for free constitutes a use or sale. If it has, it directly infringes.
You, the jury, make this decision.
You must consider each of the asserted claims of a patent individually, and decide
whether Google directly infringes that claim.
To decide whether an accused product or method directly infringes a claim of the
asserted patent, you must compare that the accused product or method with that particular patent
claim and determine whether every requirement of the asserted claim is included in the accused
product or method. If so, then the maker, user, or seller of the product or method directly
infringes that claim. If, however, the accused product or method does not meet every
requirement in the particular asserted claim, then the maker, user, or seller does not directly
infringe that claim. You must decide infringement for each asserted claim separately. Oracle
must prove infringement of the claim by a preponderance of the evidence.
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15.
If all elements of an asserted claim have been proven, it is not a defense to infringement
that the accused product or method includes an additional element not called out in the patent
claim. For infringement to be proven, the elements must all be present as per the claim
language. For example, if a patented method claim calls out three steps to paint a wall, it would
be infringed by a method including the same three steps in the claim and it would be no defense
that a fourth step is also done.
16.
To prove direct infringement, it is not necessary to prove that any infringement was
intentional or willful. Innocent direct infringement would still be infringement. The fact, if true,
that the accused product or method was independently developed without any copying of the
patent owner’s product or method is not a defense to direct infringement. All that matters for
purposes of direct infringement is whether all limitations of the claim are present in the accused
product or method.
17.
To assist you on the direct infringement issue, counsel gave you a handout that identified
the limitations in dispute and underlined in red the elements disputed. Oracle contends that the
accused products and methods satisfy all the limitations of the asserted claims. Google concedes
that the elements not underlined are present in the accused products but contends the underlined
items are absent.
18.
So far I have been talking about direct infringement. Now I will explain indirect
infringement. Induced infringement and contributory infringement are two different types of
indirect infringement. A patent claim is indirectly infringed by a party who induces another
party to directly infringe or contributes to another party’s infringement. Only if one party
directly infringes can another party be found to indirectly infringe. That is, indirect infringement
by one party must be based on direct infringement by another party.
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19.
In this case, Google is accused of indirect infringement based on alleged direct
infringement by mobile device manufacturers, mobile service providers, and application
developers for the Android platform. There are no mobile device manufacturers, mobile service
providers, and developers named as defendants in this case. Yet, you must decide whether the
mobile device manufacturers, mobile service providers, and developers directly infringe the
asserted claims. I have already instructed you about the test for direct infringement. This
question of direct infringement is a prerequisite to the question whether Google indirectly
infringes the asserted claims.
20.
Oracle alleges that Google has contributed to and actively induced infringement of the
asserted patents by others. Specifically, Oracle alleges the following:
- Google contributed to and actively induced infringement of the ’104 patent by
device manufacturers, mobile service providers, and developers.
- Google contributed to and actively induced infringement of the ’520 patent by
device manufacturers and developers.
21.
For Oracle to carry its burden of proof on induced infringement, it must show that
Google actively induced another to directly infringe the asserted claims. Specifically, Oracle
must show the following three elements: (1) that Google intentionally took action that actually
induced direct infringement by another; (2) that Google knew or should have known of the
asserted patent; and (3) that Google knew its action would cause direct infringement by another.
If you find that there has been no direct infringement by another, then there is no need for
you to address the question of induced infringement.
22.
For Oracle to carry its burden of proof on contributory infringement, it must show the
following four elements: (1) that the asserted claim was directly infringed by another; (2) that
Google supplied an important component of the infringing product or method; (3) that the
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component had no substantial non-infringing use; and (4) that Google supplied the component
with knowledge of the asserted patent and knowledge that the component was especially made or
adapted for use in an infringing manner.
If you find that there has been no direct infringement by another, of course, then there is
no need for you to address the question of contributory infringement.
23.
For both induced and contributory infringement, the knowledge requirement can be
satisfied by showing that Google had actual knowledge or that Google was willfully blind. In
order to show that Google willfully blinded itself to a fact, Oracle must show that:
1. Google subjectively believed that there was a high probability that a fact existed;
and
2. Google took deliberate actions to avoid learning of that fact.
For example, with respect to the existence of an asserted patent, Oracle must show that Google
subjectively believed that there was a high probability that the patent existed and that Google
took deliberate actions to avoid learning of the patent.
24.
I will again give you a special verdict form to guide your deliberations. Although the
special verdict form presents the questions in numerical order, you may consider the questions
out of sequence so long as your answers conform to the directions on the form concerning which
questions you must ultimately answer and which questions are only conditional depending on
your other answers.
25.
When you retire to the jury room to deliberate, you will soon receive the following
things:
1. All of the exhibits received into evidence, including those from Phase
One;
2. An index of the exhibits;
3. A work copy of these jury instructions for each of you;
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4. A work copy of the verdict form for each of you; and
5. An official verdict form.
Remember that none of these items are evidence except the exhibits.
When you recess at the end of a day, please place your work materials in the brown
envelope provided and cover up any easels with your work notes so that if my staff needs to go
into the jury room, they will not even inadvertently see any of your work in progress.
26.
In your deliberations it is usually premature to take a straw vote early on. This is due to
the risk of jury members expressing a premature opinion and then, out of pride, digging in their
heels. Rather it is usually better to discuss the evidence, pro and con, on the various issues
before proceeding to take even a straw vote. In this way, all the viewpoints will be on the table
before anyone expresses a vote. These are merely recommendations, however, and it is entirely
up to you to decide on how you wish to deliberate.
27.
A United States Marshal will be outside the jury-room door during your deliberations.
If it becomes necessary during your deliberations to communicate with me, you may send a note
through the Marshal, signed by your foreperson or by one or more members of the jury. No
member of the jury should ever attempt to communicate with me except by a signed writing, via
the Marshal, and I will respond to the jury concerning the case only in writing or here in open
court. If you send out a question, I will consult with the lawyers before answering it, which may
take some time. You may continue your deliberations while waiting for the answer to any
question. Remember that you are not to tell anyone — including me — how the jury stands,
numerically or otherwise, until after you have reached a unanimous verdict or have been
discharged. Do not disclose any vote count in any note to the Court.
28.
You have been required to be here each day from 7:45 A.M. to 1:00 P.M. Now that you
are going to begin your deliberations, however, you are free to modify this schedule within
reason. For example, if you wish to continue deliberating in the afternoons after a reasonable
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lunch break, that is fine. The Court does, however, recommend that you continue to start your
deliberations by 8:00 A.M. If you do not reach a verdict by the end of today, then you will
resume your deliberations tomorrow and thereafter.
It is very important that you let us know via note what hours you will be deliberating so
that we may conform our schedule to yours.
29.
You may only deliberate when all of you are together. This means, for instance, that in
the mornings before everyone has arrived or when someone steps out of the jury room to go to
the restroom, you may not discuss the case. As well, the admonition that you are not to speak to
anyone outside the jury room about this case still applies during your deliberation.
30.
After you have reached a unanimous agreement on a verdict, your foreperson will fill in,
date and sign the verdict form and advise the Court through the Marshal that you have reached a
verdict. The foreperson should hold onto the filled-in verdict form and bring it into the
courtroom when the jury returns the verdict. Thank you for your careful attention. The case is
now in your hands. You may now retire to the jury room and begin your deliberations.
Dated:
____________________________
WILLIAM ALSUP
UNITED STATES DISTRICT JUDGE
11
1123
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA
ORACLE AMERICA, INC.,
Plaintiff,
v.
GOOGLE INC.,
Defendant.
No. C 10-03561 WHA
ORDER GRANTING MOTION
FOR JUDGMENT AS A
MATTER OF LAW ON
DECOMPILED FILES
The evidence at trial showed that Google decompiled eight Java files and copied them
each in their entirety. No reasonable jury could find that the copying of entire computer files
was de minimis. The trial record contains the source code for the Java code files
(TX 623.2–623.8), decompiled versions of Java code files (TX 896.1–896.8), and corresponding
Android code files (TX 1031–40). Professor John Mitchell testified about the decompilation
process, how he determined that the eight files were decompiled and how, in a side-by-side
comparison he found “that the actual code matches completely” (Tr. at 1259–1260).
In its opposition brief, Google argues that the jury may have found that Google’s use of
the copied files was de minimis because these copied files were only “test files” that were not
shipped on Android phones. This is unpersuasive. Professor Mitchell testified that using the
copied files even as test files would have been significant use. There was no testimony to the
contrary. Moreover, our court of appeals has held that it is the amount of copying as compared
to
plaintiff’s work that matters for the de minimis inquiry, not how the accused infringer used the
copied work. Newton v. Diamond, 388 F.3d 1189, 1195 (9th Cir. 2004). Here, Google has
admitted to copying the entire files. No reasonable jury could find that this copying was de
minimis.
For the reasons stated, Oracle’s motion for judgment as a matter of law of infringement
of the decompiled files is GRANTED. The answer to Question 3B on the Special Verdict Form
from phase one will be deemed “Yes.”
IT IS SO ORDERED.
Dated: May 11, 2012.
/s/ William Alsup
WILLIAM ALSUP
UNITED STATES DISTRICT JUDGE
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Authored by: PolR on Sunday, May 13 2012 @ 03:17 PM EDT |
If any are needed. [ Reply to This | # ]
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- Anacoluthon - Authored by: BJ on Sunday, May 13 2012 @ 03:24 PM EDT
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Authored by: PolR on Sunday, May 13 2012 @ 03:19 PM EDT |
Please follow the important stuff below the commenting box. Also make your links
clickable. The little red text on how to post in HTML below the comment box
includes an example of how to do this.[ Reply to This | # ]
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Authored by: PolR on Sunday, May 13 2012 @ 03:21 PM EDT |
Please indicate the title of the news pick in your comment title. [ Reply to This | # ]
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Authored by: PolR on Sunday, May 13 2012 @ 03:23 PM EDT |
Thanks to all the volunteers. This project continues.
[ Reply to This | # ]
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Authored by: Anonymous on Sunday, May 13 2012 @ 03:40 PM EDT |
To assist you on the direct infringement issue, counsel gave you a
handout that identified the limitations in dispute and underlined in red the
elements disputed. Oracle contends that the accused products and methods satisfy
all the limitations of the asserted claims. Google concedes that the elements
not underlined are present in the accused products but contends the underlined
items are absent.
Is this handout available somewhere online?[ Reply to This | # ]
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Authored by: Anonymous on Sunday, May 13 2012 @ 04:28 PM EDT |
The definition of Symbolic reference as anything other than a direct reference
is a bit odd - there are also indirect references rather (memory cell contains
address of the thing that is being referenced, and so on ad infinitum - at least
if you're coding assembler on an HP 1000). [ Reply to This | # ]
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Authored by: darlmclied on Sunday, May 13 2012 @ 05:56 PM EDT |
I'm puzzled by the judge over-ruling the jury's verdict on
the issue of the decompiled files.
I'm inclined to agree with the judge, but why did he ask the
question if he wasn't going to accept the answer?
Seems like a recipe guaranteed to create an appeal.[ Reply to This | # ]
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Authored by: Anonymous on Sunday, May 13 2012 @ 07:26 PM EDT |
If oracle are not going for statutory damages, and are
legally barred from
presenting evidence on infringers profits (due to the
shenanigans with their
damages reports), it looks to me (IANAL) like they have
zero possibility of any
damages unless there is a legal ruling in their favour
somewhere.
Is that right? And if so, is this weak position a strategy
to manipulate the judge
into ruling something for them to try to salvage the
beelions instead of getting
the statutory pittance.
Alternatively is is something to do with the chance of
the injunction they are
seeking being
affected by the type of damages? I have no idea how
this works?[ Reply to This | # ]
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Authored by: pcrooker on Sunday, May 13 2012 @ 07:37 PM EDT |
Now I will address the burden of proof. In this phase, the
preponderance of the evidence standard applies. ... Preponderance of the
evidence basically means “more likely than not.
I thought patent
cases required the defendant to provide conclusive evidence, not just
preponderance of evidence???[ Reply to This | # ]
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Authored by: Tkilgore on Sunday, May 13 2012 @ 11:20 PM EDT |
Quoting:
"Oracle accuses Google of direct infringement. Deciding whether a claim has
been directly infringed is a two-step process. The first step is to decide the
meaning of the patent claim. I have already instructed you as to the meaning of
some of the terms in the asserted patent claims. The second step is to decide
whether Google has made, used, sold, or offered for sale within the United
States a product or method covered by a claim of the asserted patents.
Distributing or offering a product for free constitutes a use or sale. If it
has, it directly infringes."
I have asked this question before, and I still do not completely understand.
What, exactly, has Google "made, used, sold, or offered for sale"
which is a "product or method covered by a claim" of an asserted
patent?
Does or can source code for a computer program constitute a "product or
method" which can violate a patent?[ Reply to This | # ]
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Authored by: eachus on Monday, May 14 2012 @ 12:33 AM EDT |
I may not have spent my career studying Constitutional law, but I think that the
Judge has just made an error which will invalidate the rest of the (jury) trial.
"The jury is the trier of law and of fact." I could go on for pages about jury
nullification, but that is irrelevant here. This is all about facts, the jury
reached a verdict given the jury instructions and the testimony they heard. If
the jury found that the copying was "de miniumus," a question they were charged
by the court to decide, for the judge to find that their verdict is contrary to
fact, is unconstitutional. The jury did not throw out the law, they
applied the law to the facts as determined by the jury, and reached a
verdict.
Could the judge determine that, since the jury could not reach a
conclusion on one of the questions, to declare a mistrial? Sure. But can he
fill in the verdict form the way he feels is appropriate? Hell, no! This is
not a bench trial. [ Reply to This | # ]
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Authored by: sproggit on Monday, May 14 2012 @ 02:42 AM EDT |
In the order reproduced with this article, the Court
writes:-
"The evidence at trial showed that Google
decompiled eight Java files and copied them each in their entirety. No
reasonable jury could find that the copying of entire computer files was de
minimis."
Yet in the Introduction to it's Motion Re Summary
Judgment for Copyright Damages, Counsel for Google wrote the
following:-
"This Court should grant summary judgment for
Google on Oracle’s right to recover any of Google’s profits based on
infringement of Oracle’s copyrights in (1) a 3,000-line file called Arrays.java,
from which Google copied a nine-line method called rangeCheck; and (2) eight
decompiled test files, which were copied by a third-party contractor called
Noser in violation of Noser’s contract with Google and unwittingly used by
Google (and which never actually appeared on any Android phone). 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."
I am not entirely sure of the relevant point[s] of law
here, but it seems to me that Google has provided uncontested fact to show that
a third party, Noser, and not Google, were responsible for copying the test
files, and that Google, through it's contract with Noser, took reasonable levels
of caution to ensure that Noser acted properly during their execution of that
contract.
In other words, it seems to me that if Oracle has a
complaint with someone, it is with Noser, not Google.
It seems pretty
obvious to me that Google's perspective on the "Test Files" portion of the
copyright infringement would be that Oracle have made their complaint against
the wrong party.
Let's be kind to Oracle and assume that they were not
aware of this before the commencement of the trial. Once Google had presented
it's evidence in defense, surely we should expect Keker & van Nest to ask
either Oracle or the Court to withdraw that specific portion of their complaint.
To do so would not prejudice Oracle from the other complaints they wished to
raise, but it would alleviate all parties from the overhead of having to
evaluate a charge for which Google are evidentially not guilty.
Unless. Unless Oracle was more interested in securing a large
financial payout from Google, and unless Oracle realised that Noser, a
130-strong company with Headquarters in Switzerland, are
(i)
Headquartered outside of the US - in Switzerland - which would add to the cost
and complexity of bringing this lawsuit on US soil.
(ii) a smallish,
130-person company who are very unlikely to have pockets as deep or well-filled
as Google.
In short, as I have written multiple times before, this case
is all about getting money out of (extorting money from?) Google.
It
intrigues me to see that Google have not placed such a motion before the Court.
In wondering why, I can only guess that Google are happy to let this mistake
remain with the case to strengthen their arguments for an appeal should they
ultimately lose.
I would be interested, however, to know if anyone has
any other thoughts as to why this seems to be being ignored by all parties... [ Reply to This | # ]
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Authored by: stovring on Monday, May 14 2012 @ 03:46 AM EDT |
Many commenters appear very upset with the judge overruling the jury with
respect to de minimis copying of the eight files. But the logic of the
judge seems ironclad here, as Google did indeed copy the files in their
entirety, although inadvertently. But note, that this finding requires defining
the work as a whole, which was infringed, to equal just these eight files - I
would guess that this reduces any possible damages to some number, which in any
version will be indistinguishably similar to zero $ (as in nada, zilch,
squat, etc.), since none of these files gave Google any income. Their income is
from Android in general, and this is by this ruling no longer the work as a
whole.
- stovring [ Reply to This | # ]
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Authored by: rsteinmetz70112 on Monday, May 14 2012 @ 09:41 AM EDT |
I have the sense that the Judge is carefully going somewhere with all of this.
Suppose he granted Oracles motion with full knowledge that the jury will
probably find minimal damages, and then after the damages phase rules on the
SSO?
Surely there will be other motions on patents and damages. Oracle has already
started. The Judge seems not to care for corporate litigants and has
acknowledged that there will be an appeal.
Just wondering.
---
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
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Authored by: ChrisP on Monday, May 14 2012 @ 11:08 AM EDT |
Rachel King has been tweeting about court events for the last half an hour.
Interesting. Jury to ignore anything that happened since the complaint was
filed.
https://twitter.com/#!/ZDNetRachel
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Gravity sucks, supernovae blow![ Reply to This | # ]
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