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Oracle v. Google - You Can't Make This Stuff Up (or maybe you can) |
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Thursday, October 13 2011 @ 10:00 AM EDT
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If it weren't for the potentially serious economic and technological ramifications of this case, some of the filings would be worth their weight in gold with respect to their entertainment value. Such is the case when reading Google's response (519 [PDF; text below]) to Oracle's précis letter seeking leave to file a Daubert motion regarding the Google damage expert reports of Drs. Leonard and Cox (See document 511). As I said yesterday, we only read Oracle's side of the story, and I expected Google's to be quite different. It is.
Oracle complained that Drs. Cox and Leonard have no technical background and, instead, relied upon Google employees for technical interpretations. As Google points out, this is the same thing Oracle has done. Pot, meet kettle.1 Google further points out that it intends to make all of those Google employees upon which Drs. Leonard and Cox relied available for questioning at trial before putting either of the doctors on the stand. So Oracle will have ample opportunity to question the merits of the technical observations.
Finally, on this same issue of technical experts, Oracle asserted that Google never identified two of the individuals, Rizzo and Bray, as witnesses. Not so, says Google. Google says it identified Rizzo early on (that should be easy enough to verify) and that it was Oracle that identified Bray as a potential witness. Oops!
Oracle had also argued that Google failed to make the documents available upon which Drs. Leonard and Cox relied. Not so, says Google - all of the documents were made available. Just check your records, Oracle.
Google further contends that, contrary to Oracle's assertions, the good doctors followed the law in preparing their damage reports, including identifying potential copyright damages. The fact that they also pointed out that Google could have made just as much profit absent the alleged infringement is not contrary to the law but, in fact, a requirement of the law.
The real poke in the eye comment is Google's fifth response. Oracle had argued that Drs. Cox and Leonard had failed to base their opinions on factual information, but only on their own prior conclusions (hence, the reference to ipse dixit - an unsupported statement that rests solely on the authority of the individual who makes it). As Google sarcastically asserts, the Oracle précis letter itself is ipse dixit because it is neither grounded in law or fact.
We should see a fairly quick turnaround on this issue by Judge Alsup.
The only other significant filing of the day is Google's proposed motion (513 [PDF; text below]) to retain the confidential nature of the Lindholm emails at least until Judge Alsup decides on the pending motion challenging the prior ruling of the magistrate (that the emails are not privileged).
_________________________
1 A reference to the old saying, "That's like the pot calling the kettle black." The saying suggests that a party making an accusation is guilty of the very thing of which they accuse the other party.
Skip to Comments
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Docket
513 – Filed and Effective: 10/11/2011
MOTION
Document Text: MOTION to Retain Confidentiality Designations filed by Google Inc.. Motion Hearing set for 11/17/2011 08:00 AM in Courtroom 8, 19th Floor, San Francisco before Hon. William Alsup. Responses due by 10/25/2011. Replies due by 11/1/2011. (Attachments: # 1 Proposed Order)(Van Nest, Robert) (Filed on 10/11/2011) (Entered: 10/11/2011)
514 – Filed and Effective: 10/11/2011
Declaration
Document Text: Declaration of Mark Francis in Support of 513 MOTION to Retain Confidentiality Designations filed byGoogle Inc.. (Attachments: # 1 Exhibit Exhibit A, # 2 Exhibit B)(Related document(s) 513) (Van Nest, Robert) (Filed on 10/11/2011) (Entered: 10/11/2011)
515 – Filed and Effective: 10/11/2011
ORDER
Document Text: *** FILED IN ERROR. PLEASE SEE DOCKET # 516 ***
STIPULATION AND [PROPOSED] ORDER TO EXTEND TIME TO FILE JURY INSTRUCTIONS, VERDICT FORMS, AND TRIAL BRIEFS by Oracle America, Inc.. (Norton, William) (Filed on 10/11/2011) Modified on 10/12/2011 (wsn, COURT STAFF). (Entered: 10/11/2011)
516 – Filed and Effective: 10/12/2011
Proposed Stipulation
Document Text: STIPULATION STIPULATION AND [PROPOSED] ORDER TO EXTEND TIME TO FILE JURY INSTRUCTIONS, VERDICT FORMS, AND TRIAL BRIEFS by Oracle America, Inc. (Norton, William) (Filed on 10/12/2011). CORRECTION OF DOCKET # 515 . Modified on 10/12/2011 (wsn, COURT STAFF). (Entered: 10/12/2011)
517 – Filed and Effective: 10/12/2011
ORDER
Document Text: ORDER APPROVING STIPULATED REQUEST FOR SECOND EXTENSION OF TIME FOR PRETRIAL FILINGS re 516 Stipulation filed by Oracle America, Inc.. Signed by Judge Alsup on October 12, 2011. There will be no more extensions. (whalc1, COURT STAFF) (Filed on 10/12/2011) (Entered: 10/12/2011)
518 – Filed and Effective: 10/12/2011
ORDER
Document Text: ORDER CONTINUING MOTION HEARING AND SETTING CASE MANAGEMENT CONFERENCE. Signed by Judge Alsup on October 12, 2011. (whalc1, COURT STAFF) (Filed on 10/12/2011) (Entered: 10/12/2011)
519 – Filed and Effective: 10/12/2011
Letter
Document Text: Letter from Robert Van Nest PRECIS OPPOSING REQUEST TO FILE DAUBERT MOTIONS. (Van Nest, Robert) (Filed on 10/12/2011) (Entered: 10/12/2011)
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Documents
513
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
SAN FRANCISCO DIVISION
ORACLE AMERICA, INC.,
Plaintiff,
v.
GOOGLE INC.,
Defendant.
Case No. 3:10-cv-03561-WHA
DEFENDANT GOOGLE INC.’S NOTICE
OF MOTION AND MOTION TO RETAIN
CONFIDENTIALITY DESIGNATIONS
Hearing Date: November 17, 2011
Time of Hearing: 8 a.m.
Judge: Hon. William Alsup
Date Comp. Filed: October 27, 2010
Trial Date: October 31, 2011
NOTICE OF MOTION AND RELIEF REQUESTED
PLEASE TAKE NOTICE that on November 17, 2011 at 8:00 a.m., or as soon thereafter
as counsel may be heard, Defendant Google Inc. (“Google”) will, and hereby does, respectfully
move to maintain the confidentiality designations of particular documents produced pursuant to
this Court’s Orders [Dkt. Nos. 354 and 361], which bear the production numbers GOOGLE-12-
100000001 - GOOGLE-12-100000011. Google brings this Motion pursuant to the Joint
Stipulated Protective Order entered in this case [Dkt. Nos. 66 and 68], and it is based on the
following memorandum of points and authorities in support, the Declaration of Mark Francis and
accompanying exhibits, the entire record in this matter and on such evidence as may be presented
at a hearing on this Motion.
I. INTRODUCTION
On August 25 and August 26, 2011, Magistrate Judge Ryu ordered Google to produce
certain documents in the litigation (“Lindholm Documents”). [Dkt. Nos. 354 and 361.] Google
promptly did so, but Oracle challenged Google’s designation of those documents as “Highly
Confidential - Attorneys’ Eyes Only” (“AEO”) under the Stipulated Protective Order in this case,
[Dkt. No. 66 at ¶ 2.8], and requested that Google re-designate the document “Confidential,”
rather than AEO. See Declaration of Mark Francis in Support of Defendant Google Inc.’s
Motion to Retain Confidentiality Designations (“Francis Decl.”), Exh. A. Pursuant to the
Court’s order, [Dkt. No. 462], the parties held a telephonic meet-and-confer pursuant to ¶ 6.2 of
the Protective Order on September 28, 2011, and Oracle’s counsel confirmed that the meet and
confer process did not resolve the parties’ dispute by e-mail dated October 3, 2011. Francis
Decl. ¶3 & Exh. B.1 Google brings this motion to defend the AEO designations on the
documents in question, which bear the production numbers GOOGLE-12-100000001 -
GOOGLE-12-100000011.
________________________
1 During the meet-and-confer, the possibility of sharing the Lindholm Documents with a limited
number of Oracle in-house counsel and executives was discussed. Francis Decl. ¶3. Google,
however, has a pending motion for review of Magistrate Judge Ryu’s ruling that the Lindholm
Documents are not privileged, and for that reason stated that it could not agree to the proposed
compromise. Id.
1
II. DISCUSSION
A. The Lindholm documents should be designated AEO at least until the privilege
dispute is resolved.
This is not the run-of-the-mill protective order designation disagreement. The primary
reason these documents merit AEO designation is because there is a pending dispute over
whether those documents are privileged, and therefore should not have been ordered produced in
the first instance. [See Dkt. Nos. 441 and 472.] Any decisions relating to the confidentiality
designation of the Lindholm Documents should therefore be reserved until at least the privilege
issue has been resolved. Cf. Laethem Equip. Co. v. Deere & Co., 2007 WL 2897851 (E.D. Mich.
Sept. 28, 2007) (magistrate judge entered but stayed execution of order de-classifying documents
because “it would be prudent to permit [the judge] to rule on plaintiffs’ objections [to an earlier
magistrate order] before enter[ing] an order regarding declassification of documents. . . .”). This
approach would be consistent with the Court’s previous granting of motions to seal regarding
information related to the Lindholm Documents “[o]ut of an abundance of caution.” [Dkt. No.
477; see also Dkt. No. 460].
B. The Lindholm documents were properly designated as AEO, even assuming they
are not privileged.
Moreover, even without the privilege issue these documents qualify for AEO status under
the Stipulated Protective Order. That order permits AEO designation for documents containing
“extremely sensitive ‘Confidential Information or Items,’ disclosure of which to another Party or
Non-Party would create a substantial risk of serious harm that could not be avoided by less
restrictive means.” [Dkt. No. 66 at ¶ 2.8.] As reflected in the declaration Google has previously
submitted in connection with briefing on the privilege issue, Lindholm was tasked with
“gather[ing] information for Google’s lawyers and management to consider in evaluating
technology issues related to Oracle’s infringement claims.” [Dkt. No. 316 at ¶ 7.] A technology
analysis related to a highly competitive business area meets the AEO standard. Moreover,
Google does not publicly disclose its internal deliberations and evaluations of threats of litigation
or the merits of such claims asserted against it, its potential responses to threats of litigation, or
its strategic approach to litigation generally. [Dkt. No. 443 at ¶ 2.]
2
III. CONCLUSION
For the foregoing reasons, Google’s motion should be granted, and the challenged
documents should retain their AEO designations.
Dated: October 11, 2011
Respectfully submitted,
KEKER & VAN NEST LLP
By: s/ Robert A. Van Nest
ROBERT A. VAN NEST
Attorneys for Defendant
GOOGLE INC.
3
514
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
SAN FRANCISCO DIVISION
ORACLE AMERICA, INC.,
Plaintiff,
v.
GOOGLE INC.,
Defendant.
Case No. 3:10-cv-03561-WHA
DECLARATION OF MARK FRANCIS IN
SUPPORT OF DEFENDANT GOOGLE
INC'S MOTION TO RETAIN
CONFIDENTIALITY DESIGNATIONS
Hearing Date: November 17, 2011
Time of Hearing: 8 a.m.
Judge: Hon. William Alsup
Date Comp. Filed: October 27, 2010
Trial Date: October 31, 2011
I, Mark H. Francis, state::
1. I am an associate in the law firm of King & Spalding LLP, counsel for defendant
Google Inc. ("Google") in this case. I submit this declaration in support of Google's Motion To
Retain Confidentiality Designations. I make this declaration based on my own personal
knowledge. If called as a witness, I could and would testify competently to the matters set forth
herein.
2. Attached hereto as Exhibit A is a true and correct copy of email correspondence -
between outside counsel for Oracle and for Google, regarding Google's designation of
GOOGLE-12-100000001 - GOOGLE-12-100000011 "Highly Confidential- Attorney's Eyes
Only" under the Stipulated Protective Order in this matter. I was copied on this correspondence
as a member of the "dalvik-KS" email grouplist.
3. Pursuant to the Court's order, I conducted a telephonic meet and confer regarding
this dispute with Oracle's outside counsel, Alanna Rutherford, on September 28,2011. During
that call, the parties discussed whether Google would permit, as a condition of resolving the
dispute, to allow the documents at issue to be shared with a limited number of Oracle in-house
counsel and executives despite the AEO designation. Attached as Exhibit B is a true and correct copy of email correspondence memorializing the parties' discussion, Google's indication that it could not agree to the proposal, and Oracle's confirmation that it still wished to challenge Google' s designations for the documents at issue.
I declare under penalty of perjury that the foregoing is true and correct. Executed on
October 11,2011.
By: /s/ Mark H. Francis
MARK H. FRANCIS
1
517
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
SAN FRANCISCO DIVISION
ORACLE AMERICA, INC.,
Plaintiff,
v.
GOOGLE INC.,
Defendant.
Case No. 3:10-cv-03561-WHA
STIPULATION AND
ORDER TO EXTEND TIME TO
FILE JURY INSTRUCTIONS,
VERDICT FORMS, AND TRIAL
BRIEFS
Judge: Hon. William Alsup
STIPULATION
WHEREAS, pursuant to the Court’s scheduling order, and the Court’s Order of October 6,
2011, the parties are to file joint jury instructions, briefing on any disputed instructions, proposed
verdict forms, proposed voir dire, and a joint pre-trial order, on October 12, 2011;
WHEREAS, the parties have been meeting and conferring in an attempt to work out their
differences in the various components of the filing;
WHEREAS, the attorney for Oracle with primary responsibility for negotiating and
briefing the jury instructions, who also shares responsibility for the trial brief, is unexpectedly
unavailable due to a family medical emergency;
WHEREAS, the Court has indicated that the pre-trial conference that was scheduled for
October 17, 2011, will be moved to the afternoon of October 24, 2011; and
WHEREAS, the parties acknowledge and agree that a limited extension of time to file
joint jury instructions, briefing on any disputed instructions, proposed verdict forms, and trial
briefs will not affect, delay, or push back any other deadlines in this case.
NOW THEREFORE THE PARTIES HEREBY STIPULATE AND AGREE that:
1. The parties will continue to meet and confer over the next several days to resolve
issues that can be resolved and narrow areas of dispute, and thereafter file the joint jury
instructions, briefing on any disputed instructions, proposed verdict forms, and trial briefs on
October 14, 2011.
2. No other deadlines in this case will be affected by the foregoing extensions. The
parties will file proposed voir dire questions and the joint pre-trial order on October 12, 2011.
The parties will not use these extensions to argue for a delay of the trial date or any other
deadlines in this case.
ORDER
The foregoing stipulation is approved, and IT IS SO ORDERED.
No more extensions will be granted.
Date: October 12, 2011.
/s/William Alsup
Honorable William Alsup
Judge of the United States District Court
1
Dated: October 11, 2011
MORRISON & FOERSTER LLP
By: /s/Fred Norton
MORRISON & FOERSTER LLP
MICHAEL A. JACOBS (Bar No. 111664)
[email]
MARC DAVID PETERS (Bar No. 211725)
[email]
DANIEL P. MUINO (Bar No. 209624)
[email]
[address telephone fax]
BOIES, SCHILLER & FLEXNER LLP
DAVID BOIES (Admitted Pro Hac Vice)
[email]
[address telephone fax]
STEVEN C. HOLTZMAN (Bar No. 144177)
[email]
[address telephone fax]
ORACLE CORPORATION
DORIAN DALEY (Bar No. 129049)
[email]
DEBORAH K. MILLER (Bar No. 95527)
[email]
MATTHEW M. SARBORARIA (Bar No. 211600)
[email]
[address telephone fax]
Attorneys for Plaintiff
ORACLE AMERICA, INC.
2
Dated: October 11, 2011
KEKER & VAN NEST LLP
By: /s/Matthias A. Kamber
KEKER & VAN NEST LLP
ROBERT A. VAN NEST (SBN 84065)
[email]
CHRISTA M. ANDERSON (SBN184325)
[email]
[address telephone fax]
KING & SPALDING LLP
SCOTT T. WEINGAERTNER (Pro Hac Vice)
[email]
ROBERT F. PERRY
[email]
BRUCE W. BABER (Pro Hac Vice)
[email]
[address telephone fax]
KING & SPALDING LLP
DONALD F. ZIMMER, JR. (SBN 112279)
[email]
CHERYL A. SABNIS (SBN 224323)
[email]
[address telephone fax]
GREENBERG TRAURIG, LLP
IAN C. BALLON (SBN 141819)
[email]
HEATHER MEEKER (SBN 172148)
[email]
[address telephone fax]
Attorneys for Defendant
GOOGLE INC.
3
518
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA
ORACLE AMERICA, INC.,
Plaintiff,
v.
GOOGLE INC.,
Defendant.
No. C 10-03561 WHA
ORDER CONTINUING MOTION
HEARING AND SETTING CASE
MANAGEMENT CONFERENCE
Due to a congested law-and-motion calendar and an ongoing patent trial, the motion
hearing previously set for October 13 is CONTINUED to a special setting at 9:30 A.M. ON
WEDNESDAY, OCTOBER 19, 2011. A case management conference will be held concurrently.
Counsel should be prepared to address the following issues:
1. How much time the Rule 706 expert will require to
complete his work. In particular, a time estimate for completing an
independent damages study as opposed to only critiquing the
studies provided by the parties’ damages experts.
2. The possibility of severing the copyright claim from
the patent claims and first conducting a shorter trial on the
copyright claim.
3. The possibility of general postponement and how
best to use any intervening time, for example with respect to
motion practice.
For the benefit of counsel, please be alerted there is a strong possibility that the final
pretrial conference set for October 24 will have to be postponed. The Court will try to provide
counsel with more scheduling information at the October 19 hearing and conference.
IT IS SO ORDERED.
Dated: October 12, 2011.
/s/ William Alsup
WILLIAM ALSUP
UNITED STATES DISTRICT JUDGE
2
519
[Keker & Van Nest LLP letterhead]
October 12, 2011
The Honorable William Alsup
United States District Court, Northern District of California
450 Golden Gate Avenue
San Francisco, California 94102
Re: Oracle America, Inc. v. Google Inc., No. 3:10-CV-03561-WHA (N.D. Cal.)
Dear Judge Alsup:
The Court should deny Oracle’s request to file a motion to strike portions of the reports
of Google’s damages experts Gregory Leonard and Alan Cox. Oracle’s request is meritless on
its face. All of Oracle’s complaints are either factually mistaken, irrelevant to the standards set
forth in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), or both.
First, Oracle complains that Dr. Leonard and Dr. Cox lack technical qualifications, but
offer technical opinions anyway. Oracle is wrong. Neither Dr. Leonard nor Dr. Cox offers a
single opinion about a technical engineering issue. They rely on the opinions of Google’s
technical experts for background supporting their damages opinions, which Oracle’s experts also
have done. Indeed, Oracle’s experts also relied on the work of ordinary Oracle employees who
have conducted flawed benchmarking studies. An expert is entitled to offer opinion testimony
based on any materials of a type reasonably relied on by experts in a given field. See Fed. R.
Civ. 703. It is routine, and entirely proper, for a damages expert in a technical patent case to rely
on a technical expert for background, and Oracle cites no authority to the contrary.
Second, again without citing any authority, Oracle objects to Dr. Leonard’s and Dr. Cox’s
reliance on interviews with Google employees. This is also meritless. Experts may rely on
interviews with percipient witnesses in forming an opinion. See Scott v. Ross, 140 F.3d 1275,
The Honorable William Alsup
October 12, 2011
Page 2
1286 (9th Cir. 1998); Lang v. Cullen, 725 F. Supp. 2d 925, 953 & n.51 (C.D. Cal. 2010). Google
has identified all the interviewees and provided Oracle with every page of Dr. Leonard’s and Dr.
Cox’s interview notes. Google intends to present each of the interviewees as a trial witness to
testify from personal knowledge, so the jury may hear and evaluate their testimony before Dr.
Leonard and Dr. Cox testify. With respect to nearly all the interviewees, Oracle either has taken
their depositions or chosen not to. Oracle has deposed all of Google’s technical experts.
Oracle’s complaint focuses on two witnesses who it claims were never disclosed—John
Rizzo and Tim Bray. As to Rizzo, Oracle is wrong. Google’s original initial disclosures, served
on December 2, 2010, disclosed all members of the Java Community Process Executive
Committee, a group that Oracle’s own website describes as including Rizzo. On July 6, 2011,
Google disclosed Rizzo individually. Oracle chose not to depose him. To the extent Oracle
claims that disclosure was not timely, Oracle has amended its own disclosures multiple times
since July 6 to add witnesses it intends to present at trial. Oracle is also wrong about Bray, who
was one of Google’s document custodians; in fact, Oracle identified Bray to Google in a March
1, 2011 letter. Google then produced Bray’s documents. On June 3, 2011, Oracle amended its
disclosures to add all Google’s document custodians (including Bray), and on July 6, 2011,
Google added its custodians (including Bray). In contrast, Oracle’s trial witness list includes
witnesses never previously mentioned in Oracle’s disclosures, including two employees whose
benchmarking studies are the foundation of Oracle’s damages case. Further, Dr. Leonard and
Dr. Cox didn’t rely on Bray for “core” technical propositions—only for the factual point that
most top-selling Android applications are written in languages other than Java. Google is willing
to make Bray available for deposition before the damages trial, if the Court so directs.
The Honorable William Alsup
October 12, 2011
Page 3
Third, Oracle falsely argues that Google’s experts relied on material that Google did not
produce in discovery. In reality, every page of the “33 agreements” and “Google ‘dashboards’”
that Oracle cites has been produced—and Oracle must know that. They were given to Google’s
experts shortly before production, prior to being stamped with production numbers, but Oracle
has had all of them for months. (Actually, each document is also separately listed in the reports
under its eventual production number.) Likewise, Google did not improperly “filter” any data.
This Court recently ruled that Oracle’s patent damages case is limited to U.S. sales of the eight
accused models identified in Oracle’s infringement contentions. Google provided Dr. Leonard
with U.S. activation data for those models so he could apply the Court’s specified parameters. In
any event, Oracle never requested any handset activation data during discovery.
Fourth, Oracle raises several cross-examination points, such as Dr. Leonard’s evaluation
of the academic literature on conjoint studies. This is not a Daubert issue. Oracle distorts Dr.
Cox’s damages opinion, falsely claiming he opines that Oracle’s copyright damages should be
zero, when Dr. Cox offers a range of potential damages—as high as $39.6 million of Google’s
profits, $5.9 million in lost profits, and $6.44 million for the lost value of a fair-market license.
Oracle also quarrels with Dr. Cox’s opinion reducing Oracle’s damages because Google could
have earned as much from Android without any alleged infringement, but this is exactly what the
law required Dr. Cox to do: identify Google’s profits not attributable to the alleged infringement.
Fifth, Oracle accuses Dr. Leonard and Dr. Cox of making ipse dixit factual assertions, but
doesn’t offer a single example. In other words, its ipse dixit accusation is itself ipse dixit.
For all the above reasons, there is no point in allowing Oracle to file a Daubert motion.
Sincerely, /s/ Robert A. Van Nest
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Authored by: jesse on Thursday, October 13 2011 @ 10:02 AM EDT |
Thank you. [ Reply to This | # ]
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Authored by: jesse on Thursday, October 13 2011 @ 10:03 AM EDT |
Thank you. [ Reply to This | # ]
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Authored by: jesse on Thursday, October 13 2011 @ 10:04 AM EDT |
Thank you. [ Reply to This | # ]
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Authored by: jesse on Thursday, October 13 2011 @ 10:05 AM EDT |
Thank you. [ Reply to This | # ]
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Authored by: Anonymous on Thursday, October 13 2011 @ 10:38 AM EDT |
In the Third section, Google identifies that Oracle complains that
Google:
relied on material that Google did not produce in
discovery
Google then covers the agreements and dashboards as
having been produced. Then they cover:
Google provided Dr. Leonard
with U.S. activation data for those models so he could apply the Court’s
specified parameters. In any event, Oracle never requested any handset
activation data during discovery.
The first part is easy, Oracle
complains about discovery they actually received, item closed. It's the second
part I'm a bit lost on.
With regards the activation data there's a couple
situations.
A: The activation data was provided to Oracle
B: The
activation data was not provided to Oracle
If the data was provided to
Oracle, I'm sure Google would have clearly specified that and there'd be no
issue like the first part.
On the other hand, if the activation was not
provided to Oracle... that raises an interesting question:
Does Google have
a Legal Requirement/Responsibility/Good Faith to provide that information to
Oracle even though Oracle did not identify it in the discovery requests?
If
so, I'd imagine Google may be sanctioned by not being allowed to present that
data during trial.
RAS[ Reply to This | # ]
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Authored by: Ian Al on Thursday, October 13 2011 @ 01:59 PM EDT |
only for the factual point that most top-selling Android
applications are written in languages other than Java.
I went to
great trouble to explain the nexus that Oracle needed to demonstrate.
Essentially, Oracle had to show the nexus between the patents and copyright and
the apps loaded on the devices still in the claims, that were imported into the
USA and which provided the total 'mobile' revenue that provides the basis for
the damages.
Now we find that most of the apps generating the 'mobile'
revenue don't even form any nexus because they are not based on the Java
language that contains the Java inventions and copyrights. The apps written in
Java are, obviously, not a significant generator of 'mobile' revenue even if
they are significantly boosted by the Oracle inventions and
APIs.
Google could have warned me!
--- Regards
Ian Al
Software Patent: code for Profit! [ Reply to This | # ]
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Authored by: Kevin on Thursday, October 13 2011 @ 02:29 PM EDT |
First, Oracle complains that Dr. Leonard and Dr. Cox lack
technical qualifications, but offer technical opinions anyway. Oracle is wrong.
Neither Dr. Leonard nor Dr. Cox offers a single opinion about a technical
engineering issue. They rely on the opinions of Google’s technical experts for
background supporting their damages opinions, which Oracle’s experts also have
done.
Let's see if I remember anything from high-school
forensics:
Tu quoque. Whether Oracle's experts have relied on
technical experts for background supporting their damages opinions is irrelevant
to the question of whether Google may permissibly do the same. If Google wishes
to impeach Oracle's expert testimony on similar grounds, it may attempt to do
so, presuming that there is no procedural reason preventing it from advancing
the argument. Fairness would appear to dictate that ceteris paribus both
damage assessments should stand or fall equally on the point.
In other
words, "pot, meet kettle" (or, more formally tu quoque) is a valid
argument that the pot is a poor role model for cleanliness, but does not bear
upon the actual blackness of the kettle.
Nevertheless, people who live in
glass houses shouldn't throw stones. --- 73 de ke9tv/2, Kevin (P.S. My
surname is not McBride!) [ Reply to This | # ]
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