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| Oracle v. Google - Reexaminations Invite a Stay |
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Friday, March 02 2012 @ 09:00 AM EST
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In one more order from the court yesterday Judge Alsup is clearly considering whether the trial needs to be delayed to allow the USPTO to complete the reexaminations of the Oracle patents. (757 [PDF; Text]) Judge Alsup has directed Oracle to "state a clear answer" to this question:
[G]iven that the examiners have issued final rejections on patents ’720, ’702, ’476, and ’205, and Oracle has only withdrawn
the ’476 patent, but still wishes to go to trial on patents ’720, ’702, ’205, ’520, and ’104, and
Oracle still wishes to have an instruction that those patents must be presumed valid and can only
be found invalid by clear and convincing evidence, would it be better to postpone trial until after
final decisions by the PTO on administrative appeal?
Judge Alsup also asks Oracle to answer this question:
[T]o avoid this problem,
will Oracle irrevocably withdraw with prejudice patents ’720, ’702, and ’205?
The judge has also invited Google to respond, although it is the Oracle answers that will be the most critical.
Clearly Judge Alsup is looking to streamline the case, and he has decided to do so by forcing Oracle's hand:
- Persist in asserting all of these patents, and you are looking at delaying the trial until at least late in the year.
- Drop three of the remaining five asserted patents (with prejudice, meaning they cannot be reasserted again later), and we will try to stay on schedule.
With respect to the two remaining patents, '104 and '520, keep in mind that the '104 patent has also received a non-final rejection, and any decision to delay could result in a final rejection and the loss of these claims, as well. Further, because of admissions made by Oracle during the reexamination of the '520 patent, Google will argue that those admissions limit the scope of the '520 claims, increasing the likelihood that Google does not infringe the claims.
Given the problems Oracle already faces with their expert's damages report, they may want to seriously rethink how this whole lawsuit is going to play out. Fortunately for Oracle they will likely have the court's decision on the damages report before they have to respond to this order.
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Docket
03/01/2012 - Set/Reset Deadlines as to 718 MOTION to Strike Portions of
Third Expert Report by Iain Cockburn and Expert Report by Steven Shugan;
Memorandum of Points and Authorities in Support Thereof. Motion Hearing
set for 3/7/2012 07:30 AM in Courtroom 8, 19th Floor, San Francisco
before Hon. William Alsup. (dt, COURT STAFF) (Filed on 3/1/2012)
(Entered: 03/01/2012)
03/01/2012 - 757 -
SUPPLEMENTAL ORDER REGARDING STATEMENT ON REEXAMINATIONS re 726 Order.
Signed by Judge Alsup on March 1, 2012. (whalc1, COURT STAFF) (Filed on
3/1/2012) (Entered: 03/01/2012)
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Document
757
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
SUPPLEMENTAL ORDER
REGARDING STATEMENT ON
REEXAMINATIONS
______________________________________
Oracle should state a clear answer to the following question: given that the examiners
have issued final rejections on patents ’720, ’702, ’476, and ’205, and Oracle has only withdrawn
the ’476 patent, but still wishes to go to trial on patents ’720, ’702, ’205, ’520, and ’104, and
Oracle still wishes to have an instruction that those patents must be presumed valid and can only
be found invalid by clear and convincing evidence, would it be better to postpone trial until after
final decisions by the PTO on administrative appeal? Also please answer: to avoid this problem,
will Oracle irrevocably withdraw with prejudice patents ’720, ’702, and ’205? The views of
Google on these questions will also be appreciated. Please provide responses by NOON ON
MARCH 9, 2012 , as part of the submission regarding the reexaminations.
IT IS SO ORDERED.
Dated: March 1, 2012.
/s/ William Alsup
WILLIAM ALSUP
UNITED STATES DISTRICT JUDGE
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| Authored by: Anonymous on Friday, March 02 2012 @ 09:12 AM EST |
I thought Oracle wanted to drag this out as long as possible?
So why expect them to agree to drop anything at this point?[ Reply to This | # ]
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| Authored by: jesse on Friday, March 02 2012 @ 09:15 AM EST |
| Thank you. [ Reply to This | # ]
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| Authored by: jesse on Friday, March 02 2012 @ 09:20 AM EST |
| Thank you. [ Reply to This | # ]
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| Authored by: jesse on Friday, March 02 2012 @ 09:20 AM EST |
| Thank you. [ Reply to This | # ]
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| Authored by: jesse on Friday, March 02 2012 @ 09:21 AM EST |
| Thank you. [ Reply to This | # ]
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| Authored by: Anonymous on Friday, March 02 2012 @ 10:56 AM EST |
... that is what is somehow sounds like to me. Giving Oracle the choice to
reduce to the patents non-finally rejected (one facing rejection, the other
possibly not infringed), or wait until the re-examinations are complete and have
it cut down to the last (possibly non-infringed) patent.
Either way, it seems the same result is expected. Does not sound like much of a
choice to me.[ Reply to This | # ]
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| Authored by: darrellb on Friday, March 02 2012 @ 12:15 PM EST |
Imo, the fact that examiners have issued final rejections is clear and
convincing evidence of invalidity.
It appears that final rejections are not clear and convincing evidence of
invalidity in a legal sense.
It seems to me that the burden of proof of validity should shift when the patent
office issues a finding of invalidity.
Instead of clear and convincing evidence of invalidity, the patent owner should
be tasked with clear and convincing evidence of validity when there is any
finding of invalidity by the patent office, whether it is final or not.
---
darrellB[ Reply to This | # ]
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| Authored by: Anonymous on Friday, March 02 2012 @ 12:18 PM EST |
What would happen, if Oracle won the trial and the patents
are declared invalid afterwords?
Would Google still need to pay?[ Reply to This | # ]
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| Authored by: Anonymous on Friday, March 02 2012 @ 03:14 PM EST |
I am surprised that given the state of the patents the judge hasn't invited
Oracle to abandon their case[ Reply to This | # ]
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| Authored by: jesse on Saturday, March 03 2012 @ 07:50 AM EST |
A funny "ha ha" moment occurred when I realized that "software
patents" are actually "quantum patents".
The exist in a range from 0 (don't exist) to 1 (do exist)...
They have no effect until actually measured (by a court)...
They can disappear when observed (patent claims evaporate)
And they can have macro effects at certain times causing money to vanish (patent
wars)
As well as cause quantum effects on money...Its existence/nonexistence the same
time - depending on who is talking about it and to whom they are talking to. Or
even what court they are in...
:)[ Reply to This | # ]
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| Authored by: Anonymous on Sunday, March 04 2012 @ 04:56 PM EST |
Ok, I may be way off base here since this is patent law (Ok, it doesn't matter,
I have no clue about law:)). But Novell was in, what I would call, a similar
position. I hope I make some sense, but her it goes. Novell was in a position
that they were making damaging statements about SCO and their Linux claims. SCO
claimed slander and that it hurt their business. It was ruled that since Novell
had good knowledge that this was not true, there cannot be slander (or something
to that effect, Novell won the case so it's moot). In other words, they had
good, substantial evidence and reason they were right and it was not the
intention to damage SCO.
Based in the single fact these patents are rejected, would Google still be on
the hook for patent infringement when the USPO rejected them (regardless if they
are overturned)? Shouldn't the fact that the USPO rejected those patents be
enough to get Google off the hook. After all since the patent office rejected
these patents; how could Google would know better.[ Reply to This | # ]
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