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Oracle v. Google - A judge grounded in the real world
Thursday, May 26 2011 @ 09:25 AM EDT

In response to the disagreements between Oracle and Google on how best to proceed (number of claims Oracle should be permitted to assert at trial and whether a stay should be issued pending reexamination of the asserted patents; See, Oracle v. Google - Sweating the details) the judge has decided [PDF] to hold both issues open until the pre-trial conference, the trial presently being set for October 2011. Basically, the judge is saying: "You don't deserve any more time for this trial than any other plaintiff, and my court is awfully busy. If you insist on making this a long and difficult trial, then don't expect me to schedule it any time soon or before the reexamination is complete." So this largely throws the issue back to Oracle - either Oracle simplifies the case (and thus shortens the time for trial) by its own accord, or the court will wait for the USPTO to simplify the case through the reexamination process. Google would likely be happy with either approach. Here is the text of the court's response:





GOOGLE INC., Defendant.

No. C 10-03561 WHA


Given the number of civil cases that will be ready for jury trial during the period between the current lengthy criminal RICO-VICAR trial and those to follow (discussed with counsel), the undersigned judge feels obligated to give priority to those civil cases most suited and practical for jury comprehension and decision, all other things being equal. The larger the number of patents and patent claims at trial, the greater will be the burden on the jury’s ability to comprehend and to reach a just and correct verdict. The larger the number of patents and patent claims asserted, moreover, the more practical it will then seem to simply stay this case and see which claims survive PTO re-examination. Although the Court doubts that the number of claims Oracle would ask a jury to learn and to evaluate is “triable,” it is premature to reach a final conclusion and the Court will let Oracle make its final proposal for a three-week trial of all issues at the final pretrial conference (and will consider a stay pending re-examination at that time). In this regard, practicality and fairness to the jury also require weighing the number and variation of invalidity contentions for the claims selected. As counsel should be aware already, the trial days will be 7:30 a.m. to 1:00 p.m. with two fifteen-minute recesses (and no lunch break) except that once the jury begins to deliberate, the jury can go as long as it wishes each day. Possibly summary judgment motions will be allowed on the patent issues but counsel should not count on it, much less count on eliminating triable issues of fact.

Therefore, this order simply approves the agreed-on points and leaves for the final pretrial conference whether a workable trial plan can be devised, failing which the trial will either be put over until it is trial-ready and/or a trial stay pending re-examination will be entered.


Dated: May 23, 2011.



Oracle v. Google - A judge grounded in the real world | 182 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Corrections posted here please
Authored by: nsomos on Thursday, May 26 2011 @ 09:35 AM EDT
Please post any corrections here.
A summary in the title can be helpful.

[ Reply to This | # ]

Authored by: Stumbles on Thursday, May 26 2011 @ 09:35 AM EDT
I think, for a least now I am liking this judge.

You can tuna piano but you can't tune a fish.

[ Reply to This | # ]

7:30am to 1pm
Authored by: maroberts on Thursday, May 26 2011 @ 09:36 AM EDT
5.5 hour days do not sound terribly stressful for the jurors. is this typical,
or is it so they can have a morning trial and an afternoon trial?

[ Reply to This | # ]

Authored by: Illiander on Thursday, May 26 2011 @ 10:28 AM EDT

Is that standard text for ending something like this?

All companies are ammoral.
They only do good deeds to make you forget the last time they did bad ones.

[ Reply to This | # ]

The Off Topic Thread
Authored by: ais523 on Thursday, May 26 2011 @ 10:51 AM EDT
In case you want to discuss something unrelated to the article, but still
appropriate for Groklaw as a whole. Remember to use HTML mode and make your
links clickable, if you want to use links.

[ Reply to This | # ]

News Picks thread
Authored by: ais523 on Thursday, May 26 2011 @ 10:59 AM EDT
For discussing the links in the sidebar on the homepage. You might want to
repeat the link so that people know what you're talking about even after it's
scrolled off the homepage.

[ Reply to This | # ]

COMES documents here
Authored by: ais523 on Thursday, May 26 2011 @ 11:02 AM EDT
Use this thread to post text versions of the Comes v. Microsoft exhibit PDFs.

[ Reply to This | # ]

Oracle v. Google - A judge grounded in the real world
Authored by: losat on Thursday, May 26 2011 @ 11:08 AM EDT
That is just so very refreshing to read that I had to comment.

[ Reply to This | # ]

Short... Sweet...
Authored by: Anonymous on Thursday, May 26 2011 @ 12:43 PM EDT
The Judge is adamant in keeping the issues triable. This order places the trade
offs squarely on Oracle, the Plaintiff. It Seems To Me that this is what
justice should be about.

If Oracle truly has a knockout point, they should be able to find it quickly,
and make it economically to the jury. If they are hoping to win with quantity
and volume, well... It is not looking so good for Oracle.

-- Alma

[ Reply to This | # ]

Oracle v. Google - A judge grounded in the real world
Authored by: xtifr on Thursday, May 26 2011 @ 01:25 PM EDT

On the one hand, I think it's too bad that the issue here isn't how implausible it might be that these patents would survive re-examination after the precedent of Bilski and such. On the other hand, given how the courts seem to make it so hard to defend patent cases, I'm glad to see a patent holder/plaintiff struggling in one of these cases.

Despite my utter lack of sympathy for Oracle, and my personal conviction that (almost all of*) these are invalid patents under any reasonable definition of a patentable invention, though, I'm still a little shocked at the idea that if someone finds a really complicated way to harm you, you may be limited in your ability to seek redress because of the difficulties in explaining the problem to a jury. This would seem to encourage truly baroque and excessively ornate methods of crime or tort.

Of course, the flip side of that is that to accuse someone of an extremely complicated tort may well compel them to prepare a really complicated (and expensive) defense, even if they're utterly innocent. Perhaps I'm just not as grounded in the real world as the judge. :)

* feelings based on my general opinion of software patents rather than any direct knowledge of the specific patents in question, hence the "almost" hedge.

Do not meddle in the affairs of Wizards, for it makes them soggy and hard to light.

[ Reply to This | # ]

Solution: Charge Oracle for judicial resources
Authored by: vb on Thursday, May 26 2011 @ 02:32 PM EDT
I wish there was a way to charge companies for the judicial resources they
consume for the purposes of market positioning. It seems built into our court
system to assume that there are infinite judicial resources.

I'm glad to see the Judge is not operating under the assumption of having
infinite resources.

[ Reply to This | # ]

Delightful summary Mark.
Authored by: jbb on Thursday, May 26 2011 @ 03:14 PM EDT
You got to the heart of the matter and explained it clearly. Thanks. I've been pretty busy this past month. I hope to be able to participate more fully in Groklaw soon.

[ ] Obey DRM Restrictions
[X] Ignore DRM Restrictions

[ Reply to This | # ]

A judge [not] grounded in the real world
Authored by: Anonymous on Thursday, May 26 2011 @ 03:42 PM EDT
At face value this is a nice excuse but under it clearly indicates that the
judge made a noticeable mistake before. So this does work towards restricting
the appeal that Oracle America did not get a fair trial because the imposed

[ Reply to This | # ]

Oracle v. Google - A judge grounded in the real world
Authored by: Yossarian on Thursday, May 26 2011 @ 04:57 PM EDT
>"either Oracle simplifies the case"

Why Oracle hates that possibility so much?

It can pick and choose the very best claims it has and fight
only over them. If it will win then it will go back to the
judge and will remind him that many more claims were not even
heard, and therefore those "very best claims" represent
the rest.

[ Reply to This | # ]

Looking for a rule of thumb - when do you have to assert everything and when not
Authored by: YurtGuppy on Thursday, May 26 2011 @ 05:19 PM EDT
We noticed in the SCO case that there were certain circumstances where you had
to say everything right up front. If you didn't mention some particular thing
you were not going to be able to include that tidbit at a later time.

(But SCO seemed to have some elasticity on that rule.)

So here is Oracle with an everything-and-kitchen-sink complaint and the judge is
making them trim it down for whatever reason.

My question is: is there a rule of thumb for when you have to throw in
everything+plus+dirty+socks and when can you just say what you really think is
the crux of the matter?

I was forming the impression that lawyers always argued with the shotgun
approach and used the side-items as negotiation fodder.

If so, Oracle is being forced to give up some of their schwag early and for not
much in return?

a small fish in an even smaller pond

[ Reply to This | # ]

Thanks - Oracle v. Google - A judge grounded in the real world
Authored by: Anonymous on Thursday, May 26 2011 @ 08:42 PM EDT
Thank you for the update.

I was reading it, and had to smile.

Wait for the USPTO to finish it's evaluation. Why waste valuable court time?

Meanwhile millions of Android phones are being sold. What if just one of those
patents holds up? Who gets stuck holding the bag? The phone companies?
Google, for every Android phone sold? Is Google going to have to go after
every vendor for a pound of flesh? How can Google have any control over what
others do with their code at this point.

[ Reply to This | # ]

A judge who lives in the real world and speaks English...
Authored by: ionic on Friday, May 27 2011 @ 05:02 AM EDT opposed to living in lawerland and only speakng legalese.

It's refreshing to see a real-world pragmatic attitude as well as an order
written in clear english that's easy for a non-legal person to understand.

[ Reply to This | # ]

Authored by: DaveJakeman on Friday, May 27 2011 @ 05:10 AM EDT
Doesn't this give Oracle the opportunity to sandbag by keeping Google in the
dark over what they are defending themselves against until the very last minute?

[ Reply to This | # ]

Playing "chicken" with the Oracle team
Authored by: Maple Syrup on Saturday, May 28 2011 @ 03:08 PM EDT
I *like* this judge. It seems to me that rather than argue with the Oracle team
- or give them an opening for appeal based on the claim that they didn't get all
of their claims heard - he's playing a nice game of chicken with them.

"Either reduce your claims enough so that I approve the trial going
forward, or else get it postponed until the USPTO rules. How much is 'enough'?
I won't say -- you have to guess."


And since Oracle has to *voluntarily* reduce their number of claims, there's no
grounds for appeal.


[ Reply to This | # ]

  • Precedents.... - Authored by: Anonymous on Tuesday, May 31 2011 @ 07:01 AM EDT
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