Jury Note: For the purpose of patent 104, do claims cover a symbolic resolution anywhere in the data fields?

In the meantime, the questions being asked by the jury in the patent phase give every indication that the jury is hung on the issue of patent infringement. Numerous times over the last two court days the jury has asked to have the instructions read to them again or to have certain phrases interpreted.

And we have our first report from the courtroom. And now I see that the question was actually two questions, one possibly the one that worries me or the one from Friday about a unanimous verdict, and the other is about definitions regarding one of the patents.

Sun's position paper was titled, "Software Patents: A European Union (EU) Directive on the Patentability of Computer-Implemented Inventions must not Jeopardize Interoperability." The title says it all, but I'm going to show the entire statement to you in all its glory, so Oracle can't pretend, as it tried unsuccessfully to do with the Jonathan Schwartz corporate blog, that it wasn't an official company statement. Sun strongly urged that Europe, if it adopted the Directive, "allow for the creation of products which can interoperate with the protected products to safeguard competition in the sector and to provide greater choice and lower costs for consumers."

Imagine that. Sun said publicly that interoperability was more important than IP rights, even patents, because it led to competition and hence greater choice and lower costs for consumers.

Now, logistics: there are a lot of them, and I could use your help.

A reader left a comment yesterday, with contact information, on possible prior art. Even though it's too late for this trial, it's never too late to bring prior art to the attention of the USPTO, and who knows what will happen in this case and in Oracle's moves thereafter. Plus the '104 patent has been found preliminarily invalid, but there are further steps to go, so it might be useful. And while Google isn't relying on prior art in this trial on the '104 patent or the '520, instead saying it doesn't use the technology described in the patent, what if Oracle has plans, if the jury brings in a verdict for Oracle on the patents, to go after others? Also, if the '104 patent is finally found invalid by the USPTO, any damages linked to that patent will be wiped out. So I wanted to highlight the comment, just in case it's useful.

You have to love it when a quote from "Through the Looking Glass" shows up in a brief. In this instance it is Google's sole response to Oracle's suggestion that "[a] reasonable jury could only find that Google did not infinge the asserted claims of the 104 patent" by quoting:

Both parties have filed their briefs in support of their JMOL's on patent infringement. The Google brief (1166 [PDF; Text]) focuses on their primary arguments for non-infringement. Much of their non-infringement defense on the '104 patent hinges on the definition of "symbolic reference." The definition adopted by the Court clearly favors Google. The non-infringement defense on the'520 patent focuses on the dx tool and Google's assertion that it does not simulate execution.

The judge asks both sides if they want a five-minute-each opportunity to argue the point before the jury, and Oracle says no. So he just tells the jury that he can't give them guidance on fact issues other than what he's already given them. That's their job. He tells the lawyers if he says yes, because of the exact wording of their question, they'll think he's telling them to find for Google. Judges do have to be very careful not to tilt the field. Surely, however, there's a way to answer the question with a yes, without tilting things. They are for sure allowed to consider that testimony and drawing whatever conclusions they think would be proper.

I can't imagine what the jury is thinking now, but I surely do see all the appeals issues mounting and mounting. And it's very clear that once again this is a jury that is divided and struggling to reach a unanimous conclusion. Our reporter in the courtroom provides us with the details.