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 expect.

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 two.

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 road.

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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