The parties have also teed up their list of witnesses for the damages phase, assuming there is one. Oracle, as expected, is going to drag in Larry Page and Eric Schmidt, and what would we do without hearing from Tim Lindholm one more time. (1154 [PDF; Text]) Google's list is far shorter (1155 [PDF; Text]), and Google indicates they will only call Prof. Astrachan if Oracle calls Prof. Mitchell.

The discussion before all that is a bit disturbing. Google apparently complained about Oracle's ambush tactics, and the judge laughed it off. It isn't so funny if you are Google. And not all judges find such tactics amusing, either. If you recall, SCO, represented by Boies Schiller, who now represent Oracle, were sanctioned by the court for trying to use ambush tactics in SCO v. IBM. Actually, they were sanctioned twice. They kept changing what their case was about, presenting new allegations at the last minute.

Motions for Judgment as a Matter of Law - Patent Phase

Both parties have filed a motion for judgment as a matter of law with respect to the patent phase of the trial. For its part, Google argues (1151 [PDF]):

First, the perspective. The jury found rangeCheck infringed. The jury also found the decompiled files not infringed, but Judge Alsup, on Oracle's motion for judgment as a matter of law, has overruled the jury on that one. So both rangeCheck and the decompiled files are infringing. For our purposes, let's set aside everything else (e.g., the SSO) as being unresolved, either because the jury was unable to reach a determination (the jury WAS in agreement that the SSO was infringed but not in agreement on Google's fair use defense) or because the Court has yet to rule on an issue of law (e.g., whether an implementation of a specification constitutes a derivative work of that specification). Those unresolved copyright infringement issues are more important than the issues that have been resolved.

Oracle has no evidence, and cannot possibly prove, that Google earned any revenue causally linked to either the nine lines of rangeCheck or the eight superfluous test files.

So Oracle has now filed a motion asking for a postponement of phase three of the trial, the damages phase. It would like a new jury, too. It wants to wait to calculate damages until after the judge decides whether APIs are copyrightable, so it can add the 37 API files into the mix for damages, if they are. Maybe then it would have a prayer of getting some money.

In short, Oracle woke up and realized it's in a pickle of its own making. It was too clever by half, and now reality has struck. It clearly is worried that if they go to the damages phase now, it will gain a big fat zero in damages. It should have thought of that before it asked for infringer's profits, but there you are.

I saw the tweeting journalists saying, Oh no, more code. But that's exactly what you want. The journalists zone out, but what I see in the notes is that the judge is paying very, very close attention, enough to ask meaningful questions. So, enjoy. I'll keep adding to the reports, but I have the first one done. [They're all done now.] Witnesses today were Andrew McFadden, Terence Parr, and David August, all Google's witnesses, providing expert testimony that Google didn't use Oracle's patented technology.

One bad news bit for Google: the judge has granted Oracle's motion for judgment as a matter of law on the directly copied test files, in question 3b of the jury's instructions, that they had decided Google didn't infringe, overruling their opposite finding. And here's the order [PDF]. The judge seems to be going to great lengths to ensure any appeal will not require a new trial.

What he did rule on were two motions for judgment as a matter of law. If a party feels at any point that after hearing all the evidence, its case can be decided by the judge without a jury because no jury could reasonably find for the other party, it can file a motion asking for judgment as a matter of law. It's common to see that near or at the end of the presentation of evidence in a trial. That kind of motion is called a Rule 50(A) motion. Here, Oracle's motion, dated May 1st, was asking the judge to rule, among other things, that Oracle is entitled to judgment as a matter of law on Google’s fair use defense. It's that motion that was denied. Google's JMOL was also denied. The bigger question, whether APIs are even copyrightable, is still pending.

So what does this ruling mean? That the issue of Google's fair use defense, at a minimum, remains alive and it has to go to a jury, a new one, unless the judge in his pending ruling decides that APIs aren't copyrightable.

Here's the Oracle motion [PDF], and I've done it as text for you. It's not the ruling we are waiting for, but it's a pretty significant decision anyhow, because it slams the door on Oracle's attempt to get a $1 billion payday from its copyright claims.