The latest goings on in Java Android case

Oracle bargains for spring trial against Google by offering to withdraw three further patents

Chris Mayer
Oracle-vs-Google

Oracle and Google have both responded to Judge Alsup’s order and it seems Oracle are willing to withdraw three patents from the patent infringement trial, but with a condition.

The wrangling in the embittered Java/Android court case between
two tech giants, Oracle and Google is still ongoing, with both
still disagreeing on the date for the infringement part of the
trial.

Following Judge Alsup’s ultimatum for Oracle to respond to his

February 24th
order, in which both parties were asked for a
candid discussion’ of the re-examined patents, Oracle
hasn’t entirely dropped the patent infringement part of their
lawsuit against Google but given a clear prefence for a mid-April
trial date above a larger number of asserted
patents.

Already rocked by the
‘James Gosling’ patent
being taken out of commission, Oracle’s
response appears to be for speed, stating they will withdraw three
patents from the litigation (‘720, ‘205, ‘702) and probably put all
their weight behind the copyright case, with no more than two other
patents featuring in the infringement part. They stated:

Oracle’s highest priority is to bring this
case to trial as soon as possible, and within the time period
recently suggested by the Court (mid-April to mid-June, 2012).
Accordingly, if the case goes to trial this spring, Oracle will
withdraw from the litigation with prejudice each claim of the ’720,
’205, and ’702 patents asserted against Google that remains
rejected at the time of trial, and proceed with the copyright case,
the ’520 patent, the ’104 patent, and any asserted claims of the
other three patents that are confirmed by the
PTO.

You may have noticed a caveat within that
response – ‘if this case going to trial this spring’. Strange that
Oracle were asked to provide ‘a candid discussion’ and don’t really
do that. If the disqualified patents are reinstated through appeal,
they are back in play. Oracle don’t seem to want to let go of them
just yet. An optimistic approach certainly that is banking on
reassertion.

Google argues that Oracle should withdraw
irrevocably the three patents that stand rejected straight away and
that the whole case shouldn’t go to trial before the fall, to allow
full re-examination of the Gosling patent, which Google believes
will happen by the summer unless Oracle stalls. 
Google
has contested the worth of the two remaining patents, as reported
on Groklaw:

The only asserted patent to survive the
reexamination process to date is the ‘520 patent; however, Oracle
has attributed to this patent the least value of any of the seven
patents originally asserted. (See Exhibit 18a to Iain Cockburn’s
Third Damages Report (ascribing to the ‘520 patent a 0.3%
apportionment percentage).) The ‘104 patent is the only other
patent without a final rejection, but it currently stands rejected
and a response from Oracle is due on April 16,
2012.

Even if the jury was to conclude that
the ‘104 patent is valid, Oracle has admittedly failed to mark with
respect to that patent, which expires on December 12, 2012, so the
potential damages period is relatively narrow and the propriety of
an injunction questionable. 

As Alsup said previously, he wanted to
streamline the trial, and Oracle’s stance (as admirable as it may
be, in terms of not letting go) throws a spanner in the works.

Florian Mueller of FOSS Patents
thinks Alsup won’t accept this
response, saying:

He can’t force Oracle to withdraw
anything, but he can delay resolution of the case, and that gives
him enormous leverage. Oracle’s conditional offer to withdraw
claims from three patents unless the USPTO reconsiders between now
and a spring trial would serve the purpose of streamlining the
trial but the judge might prefer an immediate withdrawal in order
to simplify trial
preparation 

All signs are pointing to further
stalling from Oracle, ultimately ending with a single patent trial.
When this will be could be anyone’s guess, but a spring trial looks
incredibly unlikely now as Oracle may have to make further
concessions to appease the judge. We should hear his response
within the next week or so, and it will be interesting to see how
he views Oracle’s offer.

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