Seven attempts but no cigar for Google

Google fail to suppress Lindholm email evidence in Oracle court case

Chris Mayer

The appeals court sides with the district court’s ruling to allow the potentially damaging Lindholm email to be used in the protracted court case

The US Court of Appeals for the Federal Circuit in Washington dealt Google another blow yesterday, after rejecting their appeal over the decision to allow the potentially damning Lindholm email in their embittered court case with Oracle.

The battle over Google’s use of Java patents within their Android platform has been a protracted affair, and that’s probably an understatement. This was Google’s 7th attempt to withold the evidence from the jury, who are set to meet as early as April.

A three-judge panel of the Federal Circuit denied Google’s writ of mandamus to give privilege to the Lindholm email, finding the claim to be undermined by the content within the email, the instructions on the email ( containing ‘Google Confidential’ according to the judgement) and also the fact that the addressees of the email were not legal counsel to Google.

The Lindholm email could be one of Oracle’s key pieces of evidence, as it reveals that Lindholm was asked by Google bosses Larry Page and Sergey Brin to “investigate what technical alternatives exist to Java for Android and Chrome.” In response he e-mailed Android boss Andy Rubin with the following, “We’ve been over a bunch of these, and think they all suck. We conclude that we need to negotiate a license for Java under the terms we need.” If Oracle attempt to play this card early in the trial, it pretty much tells the jury that Google were aware an infringement took place.

Analysts were quick to air their thoughts regarding the decision. Florian Mueller, of the FOSS Patents blog, said that he thought Google’s last-ditch attempt was a long shot a few weeks back but added:

At the time I thought that Google might, at the most, achieve a delay. But with today’s decision, which was handed down without even allowing an oral argument, this potential obstacle is gone and it’s all up to Oracle and the presentation of its revised damages claims. The case could go to trial in mid-April, if everything goes according to plan.

Florian added that Oracle could get a ‘lot of mileage out of this email’. Groklaw offered a different view saying:

For all of the problems created by the Lindholm email, this is not the end of the world. There remains a very plausible explanation for the email and its content, and with the right presentation to the jury, it need not (and should not) support any claim of willfulness asserted by Oracle against Google. But that is for trial. For now, Google is left to clean up this spill.

It appears that Google’s attempts to quell this invaluable piece of evidence have failed. They could appeal again but it seems that this is no longer an option, with seven refusals now. The saga continues.

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