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The information on Groklaw is not intended to constitute legal advice. While Mark is a lawyer and he has asked other lawyers and law students to contribute articles, all of these articles are offered to help educate, not to provide specific legal advice. They are not your lawyers.

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Oracle v. Google - Oracle E... [+149]

Barnes & Noble Files Pe... [+34]

Oracle v. Google - Who Cont... [+5]

Oracle v. Google - Judge Or... [+10]



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Oracle v. Google - Oracle Engineer: Android Is Not Java ME!
Friday, February 10 2012 @ 08:30 AM EST

As a lawyer you do the best you can to represent your client. You advise them what to say, what not to say, and basically, to say nothing unless they are asked a direct question. But sometimes the truth just comes out anyway. Thanks to Oracle engineer Hinkmond Wong, we now learn what the Oracle (Sun) Java engineers actually believe about Android: IT'S NOT JAVA!

This all came out in Wong's blog . Wong is one of the Oracle Java engineers identified as contributing to Dr. Cockburn's third attempt at a damages report. In the next few days Wong is going to be deposed by Google. And guess what they are going to ask him about. Probably this:


read more (159 words) 179 comments  View Printable Version
Most Recent Post: 02/11 10:43AM by Anonymous

Barnes & Noble Files Petition for Review Re Patent Misuse Defense ~pj - Updated
Thursday, February 09 2012 @ 10:57 PM EST

Remember when I told you that the initial ruling dismissing Barnes & Noble's patent misuse defense was not the end of the story? Here's the next chapter: Barnes & Noble has now filed a petition for review of the order on the following bases:
The ALJ’s decision rests on both erroneous conclusions of law and a misstatement of the facts. Rather than reviewing all facts in the light most favorable to Barnes & Noble, as is required under ITC precedent, the ALJ’s decision actually mischaracterizes Barnes & Noble’s factual allegations (and the evidence supporting them) and, indeed, simply overlooks the central basis for Barnes & Noble’s patent misuse defense.

Consistent with the Federal Circuit’s en banc decision in Princo Corp. v. International Trade Commission, 616 F.3d 1318 (Fed. Cir. 2010), Barnes & Noble alleges and has adduced evidence demonstrating that Complainant Microsoft Corporation (“Microsoft”) has impermissibly “leveraged” or broadened the scope of the patents-in-suit through its “Android licensing program”.

But the most explosive section is where Barnes & Noble describes what Microsoft said to them when they approached Barnes & Noble with a demand that they pay for a patent license:
“And what they basically told us was, it doesn’t matter if you have defenses, whether you don’t infringe, whether our patents are invalid, you’re going to need to take a license, because there’s no way that you can get out of our grasp, that we have so many patents that we could overwhelm you.”
The document says that Microsoft demands that all OEMs take a license from them and pay for all Android phones whether or not they actually infringe.

read more (16045 words) 77 comments  View Printable Version
Most Recent Post: 02/11 09:25AM by Davo.Sydney

Oracle v. Google - Judge Orders Oracle to Cough Up Engineers
Thursday, February 09 2012 @ 03:15 PM EST

That didn't take long. Less than 24 hours after receiving the joint letter from the parties with regard to witnesses relied upon by Dr. Cockburn in preparing the third version of his damages report (711 [PDF; Text]), Judge Alsup has ordered (712 [PDF; Text]) Oracle to produce all five of the engineers referenced in the report for deposition by Google. We had anticipated that he would allow Google to depose Dr. Reinhold and perhaps two of the other four engineers, but Judge Alsup told Oracle to serve them all up. And not for a mere two hours apiece but for a total of 14 hours over two days, the time to be allocated by Google as it desires.

read more (486 words) 85 comments  View Printable Version
Most Recent Post: 02/11 01:11AM by PJ

Oracle v. Google - Who Contributed To The Third Cockburn Report?
Thursday, February 09 2012 @ 10:00 AM EST

Although we have yet to have the opportunity to see the third Cockburn report, Google has seen it and in a joint letter to the Court (711 [PDF; Text]) requests the opportunity to depose a number of the (new) individuals who contributed to the revised report. The question raised is, "Who is a contributor?"

Google argues that anyone named in the report as contributing to the report is fair game, especially if they were never previously identified as a witness by Oracle and Google never had an opportunity to depose them. Oracle argues that some contributors were not contributors at all and refuses to produce four of those individuals for deposition.


read more (3596 words) 81 comments  View Printable Version
Most Recent Post: 02/11 07:05AM by Steve Martin

Some Really Good News for Barnes & Noble; and Microsoft Withdraws Another Patent ~pj
Tuesday, February 07 2012 @ 12:04 AM EST

The big news being reported by Bloomberg is that Jeff Hsu, a staff attorney at the ITC, said in an interview he will be recommending that ITC Judge Theodore Essex find Barnes & Noble has not infringed three Microsoft patents. Essex rules in April on that.

If I were a FUDster, I'd write that this means Barnes & Noble has prevailed, but I just tell you the truth, which is that this is one step in a longer process. It is, undeniably, however, fabulously good news for Barnes & Noble.

It is also not a total surprise, in that the quality of Microsoft's patents is pitiful. It may also explain why Microsoft keeps dropping patents from the case. Microsoft says it's doing it to "streamline the investigation":

Pursuant to 19 C.F.R. § 210.21(a)(1), in order to streamline the investigation, Complainant Microsoft Corporation hereby moves for partial termination of the investigation as to U.S. Patent No. 5,889,522 ("the '522 patent"), based on partial withdrawal of the Amended Complaint as to the '522 patent. The investigation will continue as to U.S. Patent Nos. 5,778,372, 6,891,551, and 6,957,233.
And you can believe that explanation if you want to. Or, you can take another quick look at all the prior art Barnes & Noble presented to the ITC regarding Microsoft's patents, including the '522 patent.

read more (1504 words) 272 comments  View Printable Version
Most Recent Post: 02/10 07:26AM by Anonymous

Oracle v. Google - Google Denied Writ of Mandamus on Lindholm Email
Monday, February 06 2012 @ 09:00 PM EST

The U.S. Court of Appeals for the Federal Circuit earlier today denied Google's petition for a writ of mandamus to overturn the district court's ruling that the Lindholm email was not privileged. Maybe, just maybe, Google will now throw in the towel on trying to protect the Lindholm email.

In an opinion which cast little doubt as to the law or the facts in this instance, a three-judge panel of the Federal Circuit found the claim of privilege to be totally undermined by the content of the email, the instructions that gave rise to the email (as stated in the body of the email), and the fact that the addressees of the email were not legal counsel to Google.


read more (2121 words) 49 comments  View Printable Version
Most Recent Post: 02/08 01:08PM by Anonymous

Oracle v. Google - Still Waiting on the Revised Cockburn Report
Monday, February 06 2012 @ 09:40 AM EST

Although Dr. Cockburn's third attempt at a damages report was due to be filed last Friday, February 3rd, it has yet to show up on the electronic docket. That is most likely due to its length and the possibility that Oracle will seek to redact portions of the filing. In the meantime, Judge Alsup has issued a clarifying order with respect to the trial briefs on the issue of copyright. (710 [PDF; Text]) The judge basically instructs the parties to not interpret the law for him but to set out the relevant passages so he may draw his own conclusions. In addition, he wants the parties to make clear where they agree on the underlying law.

We also have the transcript of the July 21 Daubert hearing on the first Cockburn damages report. (Text of Document 231) You will recall that it was at the conclusion of this hearing that Judge Alsup ordered Oracle and Dr. Cockburn to go back and try again with something closer to a more reasonable assessment of damages. (Damages Report - Try Again, Oracle) We now get a better insight into the arguments set forth by Google in attacking the original report.


read more (11194 words) 84 comments  View Printable Version
Most Recent Post: 02/08 12:44PM by Anonymous

Oracle v. Google - The Copyright Issues
Friday, February 03 2012 @ 06:00 PM EST

Today is the due date for Dr. Cockburn's third attempt at a damages report on behalf of Oracle, and just to make sure Oracle knows what needs to be submitted, Judge Alsup has issue a reminder order. (709 [PDF; Text]) The judge wants to see not only the report but also all of the related reports and studies that support it.

To recap what this third report is to address if Oracle wants to argue these points on damages:


read more (15275 words) 222 comments  View Printable Version
Most Recent Post: 02/08 04:15PM by Anonymous

Oracle v. Google - Moving the Case Along
Thursday, February 02 2012 @ 08:50 AM EST

Just because the Oracle v. Google case has not been set for trial (and won't be until at least the time at which Oracle provides its third attempt at a damages report) does not mean the court can't move the case along, and that is what Judge Alsup has done with his latest order. In an attempt to narrow the issues to be argued at trial, Judge Alsup's latest order (708 [PDF; Text]) focuses on the copyright issues and directs the parties to provide opening briefs in which they identify each remaining claim of copyright liability and the affirmative defenses to each such claim. In addition, the parties are to identify those issues that should be resolved by the court and those underlying facts that first need to be decided by the jury.

This order adds to a somewhat lengthy litany of filings due from each party under various orders in effect at this time. The timeline for those responses is:


read more (315 words) 164 comments  View Printable Version
Most Recent Post: 02/05 10:02PM by Anonymous

The Latest on the Barnes & Noble Patent Misuse Defense - Some AntiFUD ~pj
Wednesday, February 01 2012 @ 12:33 PM EST

I'm seeing a couple of articles about an initial determination by the ITC against Barnes & Noble on its patent misuse defense, and there's quite a lot of spin on the ball, thanks to the usual suspects. They are reading a lot into a title of a sealed document. I see many misstatements.

So I'll explain a little about the process, so you can understand it. For one thing, the title of the sealed ITC initial determination is called an *initial* determination for a reason. It means it isn't final. The final one comes later. Initial determinations can be reviewed by the full ITC if the defendant petitions for review and even one Commissioner says yes.

Litigation isn't like football. It is rarely suddenly over.

Most importantly, the materials and depositions Barnes & Noble is seeking in discovery from Nokia and MOSAID have not yet arrived, although the ITC did grant Barnes & Noble's motion to ask Finland and Canada to provide them, and that's still ongoing, so there is likely more to go, even at the ITC. So with those materials not yet in hand, Microsoft's statement today that this means the defense is meritless is... well... to put it kindly premature. I mean, if a determination is made without the complete record being available, what does it mean?


read more (2416 words) 61 comments  View Printable Version
Most Recent Post: 02/05 12:28PM by Anonymous

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