Case becomes Alsup vs Boies

Oracle vs Google – closing statements in patent phase, Oracle goes for broke

Chris Mayer

Oracle’s standing in this case became even more shaky yesterday, and they took a rearguard action to counter this by forgoing infringer’s profits if they

There appears to be an end in sight to this embittered lawsuit
against Google, over breaches of Java patents that made their way
into the Android platform. Tuesday’s drama in the Californian
courtroom centred around a tiff between Judge Alsup and Oracle’s
David Boies, after the tough litigator dealt a heavy blow to
Oracle’s defence.

After a late start to proceedings, in which a juror encountered
car trouble and was later dismissed, both sides presented their
closing statements to the patents phase. Oracle were up to bat
first and their argument centred around three key points – that
Google infringed both the ‘104 and ‘520 patents, and that they were
wilful in doing so.

The defendant put forward their closing statement afterwards,
with Robert Van Nest using his own trifecta – Google made
‘fundamentally different design choices for Android’ without
prior knowledge of Oracle’s patent portfolio, the Dalvik VM doesn’t
infringe the ‘104 patent and Android’s dx tool doesn’t infringe the
‘520 patent. So in direct opposition to each other as you’d

Michael Jacobs summarised Oracle’s viewpoint saying that
Google’s arguments aren’t credible, and even savaged Google’s
choices of witnesses saying that certain evidence and experts were
designed to distract from that focus’.

Robert Van Nest retorted within Google’s closing statement
that Oracle’s accusations were without foundation, adding
there isn’t a shred of evidence that anyone at Google on the
design team had seen these patents.’

After this, the two parties met before Judge Alsup alone to
discuss how to proceed with the damages phase, although we came out
of it not entirely any clearer. With Google’s mistrial motion,
Oracle’s all-or-nothing stance and the still-outstanding API
copyright ruling from the judge (which holds the key), we’re
heading into uncharted waters.

Alsup once again warned Oracle that their decision to pursue
infringer’s profits, on the offending miniscule lines of code that
helped Android get to market quicker, was in his words ‘a fishing
expedition.’ What followed was a heated exchange between the

Boies argued that Google’s ‘timing was critical…they
wanted it faster, faster, faster.’ Alsup then revealed that he
had learned how to write the rangeCheck function for this trial and
decreed that anyone could write it

The judge, who holds a mathematics degree, scathingly cut
Boies’s view to shreds:

I couldn’t have told you the first thing about Java
before this problem. I have done, and still do, a significant
amount of programming in other languages. I’ve written blocks of
code like rangeCheck a hundred times before. I could do it, you
could do it. The idea that someone would copy that when they could
do it themselves just as fast, it was an accident. There’s no way
you could say that was speeding them along to the marketplace.
You’re one of the best lawyers in America, how could you even make
that kind of argument?” 

There’s the death knell in Oracle’s argument then.
So much so that by the end of this session, Oracle took a rearguard
action by proposing to forgo infringer’s profit if Alsup
ruled that Oracle could not claim infringement on the Java APIs.
Finally they are taking heed of Alsup’s warning that they could get
a big fat zero if they went down the other

Alsup didn’t rule on this immediately but
could consider it; even Google are warming to it. The more
important resolution now appears to be on the API copyrightability
that the jury was deadlocked on, making this trial even more of a
tangled plaid. The judge admitted however that he had a lot of
reading up to do before he could possibly make a ruling one way or
the other.

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