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Oracle v. Google - Don't Count On A Delay (or Objective Analysis)
Tuesday, February 28 2012 @ 09:00 AM EST

After receiving Robert Van Nest's letter suggesting he may have conflicts with the April-June timeframe for trial, Judge Alsup has responded that he is not budging, and the parties better keep their calendars open. (749 [PDF; Text]) The judge indicates he will be surprised if the other trials for which Van Nest is scheduled actually occur as scheduled. Until they do, he intends to stick with the April-June schedule. Of course, this could change if he is convinced that waiting for the last of the USPTO reexaminations will reduce the length of this trial.

While we are at it, we should also step back and take a look at one of the minor filings from yesterday, the declaration of Hinkmond Wong. (745 [PDF; Text]) What draws our attention are the comments that seek to establish that (a) Wong was not involved in identifying the patents that would be asserted in this litigation and (b) that his earlier activities in reviewing the Sun patents for possible infringement by Android did not influence his categorization of the patents last month in support of Dr. Cockburn's third attempt at a damages report.

From Mr. Wong:

Although I have some knowledge of the Android platform, and I have assisted lawyers in analyses to determine whether Android infringes Oracle’s patents, neither aspect of that work had any effect on my work for this assignment.
I have never selected any patents for this litigation or any other.
This last statement is one of those statements that is technically correct (i.e., it was the attorneys, not Wong and the engineers, who selected which patents to assert) but which belies the fact that it was the analysis of the engineers that strongly influence the attorneys in selecting the patents to assert.

Also, not to be lost in all of this is that, based on the track record established so far in reexamination, one would expect only about 88 of those 569 patents relevant to smartphones to actually survive reexamination, and it isn't necessarily the most important ones.

One is left with the strong sense that there is nothing that is objective about any of this infringement action. This isn't like an action to establish title to real property or the boundaries of real property. Those things have a degree of measurable certainty and objectivity. Here it is a belief that the patents are valid (which most are proving not), a belief that they are infringed (with little objective proof surfacing to date), a belief as to the value of the asserted patents (based on assumption piled on top of assumption but all declared to be based on scientific analysis). This whole process bears a far greater resemblance to fiction than non-fiction. In the end I am reminded of a statement made by the court (Federal Circuit) in the case of State Contracting & Engineering Corp. v. Florida:

While we agree with the district court that this language is unambiguous, we disagree with the district court's interpretation of this language.
Ah, certainty!

There has to be a better way to run a railroad (or an economy).


***************

Docket

749 – Filed and Effective: 2/27/2012
NOTICE
Document Text: NOTICE REGARDING FEBRUARY 24 LETTER re 748 Letter filed by Google Inc.. Signed by Judge Alsup on February 27, 2012.. (whalc1, COURT STAFF) (Filed on 2/27/2012) (Entered: 02/27/2012)


***************

Document

749

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

NOTICE REGARDING
FEBRUARY 24 LETTER

___________________________________________

The Court has received the February 24 letter from Attorney Robert Van Ness. A notice on this subject should have been sent in response to the notice and order dated January 20, 2012. In any event, in the Court’s experience, conflicts such as the ones listed in the letter will likely evaporate as those trial dates approach. If those listed trials do proceed as scheduled, then and only then will there be a problem and only then will we have to consider whether to proceed with our own trial starting in mid-April. Personal vacation by counsel will in no event be an excuse for delay. Again, all counsel and witnesses must be available between mid-April and mid-June for a possible trial. Whether a trial date will be set for that period depends on when this action will be trial ready, a decision not yet made.

Dated: February 27, 2012.

/s/William Alsup
WILLIAM ALSUP
UNITED STATES DISTRICT JUDGE


  


Oracle v. Google - Don't Count On A Delay (or Objective Analysis) | 64 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Corrections here
Authored by: feldegast on Tuesday, February 28 2012 @ 09:04 AM EST
So they can be fixed

---
IANAL
My posts are ©2004-2012 and released under the Creative Commons License
Attribution-Noncommercial 2.0
P.J. has permission for commercial use.

[ Reply to This | # ]

Off topic
Authored by: feldegast on Tuesday, February 28 2012 @ 09:05 AM EST
Please make links clickable

---
IANAL
My posts are ©2004-2012 and released under the Creative Commons License
Attribution-Noncommercial 2.0
P.J. has permission for commercial use.

[ Reply to This | # ]

News picks
Authored by: feldegast on Tuesday, February 28 2012 @ 09:06 AM EST
Please make links clickable

---
IANAL
My posts are ©2004-2012 and released under the Creative Commons License
Attribution-Noncommercial 2.0
P.J. has permission for commercial use.

[ Reply to This | # ]

Comes transcribing
Authored by: feldegast on Tuesday, February 28 2012 @ 09:07 AM EST
Thank you for your support

---
IANAL
My posts are ©2004-2012 and released under the Creative Commons License
Attribution-Noncommercial 2.0
P.J. has permission for commercial use.

[ Reply to This | # ]

Ambiguity: A proposition is true or it is false
Authored by: mexaly on Tuesday, February 28 2012 @ 09:25 AM EST
"A or not A" as a calculus, may be true, but I might also believe that
the day is warm and the day is not warm.

Ambiguity relies on context.

---
IANAL, but I watch actors play lawyers on high-definition television.
Thanks to our hosts and the legal experts that make Groklaw great.

[ Reply to This | # ]

Prior Commitments
Authored by: AlexWright on Tuesday, February 28 2012 @ 09:28 AM EST
What is the law on prior commitments by members of the defence and prosecution
team?

Can the judge just decide a date for a trial irrespective of their other trial
plans?

[ Reply to This | # ]

A refreshingly straightforward deposition
Authored by: YurtGuppy on Tuesday, February 28 2012 @ 09:54 AM EST
It's nice to have an engineer surface once in awhile.

---
a small fish in an even smaller pond

[ Reply to This | # ]

Oracle v. Google - Don't Count On A Delay (or Objective Analysis)
Authored by: IANALitj on Tuesday, February 28 2012 @ 10:06 AM EST
My immediate reaction is PJ's wonderful phrase, "you can see that he didn't
just fall off a turnip truck."

This quotation comes from the story on September 23, 2010, in which PJ reported
that this case was assigned to Judge Alsup. So you can see that she didn't ride
that turnip truck either. From the very beginning, she could see what sort of
judge is on this case.

Many judges will base their scheduling decisions on legitimate potential trial
date conflicts. Judge Alsup is instead waiting to see what happens.

My one concern is an ambiguity in this story's title. There are two topics
covered, trial scheduling and the declaration of Hinkmond Wong. It is to the
latter that "Don't Count On . . . Objective Analysis" applies. Judge
Alsup is being very objective indeed.

[ Reply to This | # ]

scheduling ...
Authored by: webster on Tuesday, February 28 2012 @ 11:51 AM EST
.

Most cases don't go to trial. They are disposed of by a settlement or some
other event like a continuance [postponement].

A lawyer may schedule a trial every day of the week and have none of them go.
If one starts, the following are postponed, or started upon completion of the
first.

The Google lawyer anticipates a conflict, but only if the other matter(s) get
started. Even a trial that starts can abruptly halt. The conflict can
disappear.

These Federal Civil cases proceed on rules developed by parties with deep
pockets fighting over millions. Unless you are going after a jackpot many times
more than you would have to pay your lawyer, it is not worthwhile, to the party
or the lawyer.

Investing in a decision is expensive and risky. No one really likes to go to
trial. Something bad might happen.

Delay is not as expensive as a trial or certainly a loss.

In England it can even be worse with loser pays. One would think that a trial
with Charlotte Church in front of a jury was a winner, but even she settled
against Rupert Murdock and the tabloid phone hackers for less than a million.

They have to raise the jurisdiction amounts in small claims courts periodically
for those that can't lawyer up.

.

[ Reply to This | # ]

  • Aye but - Authored by: Anonymous on Tuesday, February 28 2012 @ 01:16 PM EST
  • scheduling ... - Authored by: Wol on Tuesday, February 28 2012 @ 02:38 PM EST
    • scheduling ... - Authored by: Anonymous on Tuesday, February 28 2012 @ 08:38 PM EST
  • Loser pays - Authored by: Anonymous on Wednesday, February 29 2012 @ 04:24 AM EST
    • Loser pays - Authored by: Anonymous on Wednesday, February 29 2012 @ 05:57 AM EST
surprised if the other trials for which Van Nest is scheduled actually occur as scheduled
Authored by: Anonymous on Tuesday, February 28 2012 @ 11:58 PM EST
What is Van Nest to do if one of the other trials does get rescheduled? Tell
them, no, I have to leave my calendar open for this other trial?

[ Reply to This | # ]

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