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Oracle v. Google - Google Requests One-Week Delay |
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Monday, March 19 2012 @ 07:30 AM EDT
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Google lead attorney Robert A. Van Nest has filed the motion asking for a brief delay in the trial starting date, a motion the judge permitted him to file, but with a notation that it was likely not going to happen. Van Nest asks for a delay of only a few days:
PLEASE TAKE NOTICE that Defendant Google Inc. (“Google”) hereby moves to continue the April 16, 2012 trial date to April 23, 2012. This Motion is based on the following memorandum of points and authorities in support, the Declaration of Robert A. Van Nest in support thereof, the entire record in this matter, and on such evidence as may be presented at any hearing of this Motion, on a date and at a time to be determined by the Court. Van Nest tells the court that he was able to get a Texas judge to advance the starting date of another trial Van Nest is handling, as well as proposing to the parties of a second one the judge is handling there to reschedule it a couple of weeks later to accomodate this case, and if that all pans out, a one-week continuance in the Oracle v. Google trial date could make it all work.
There are a number of documents listed on the docket. These deal primarily with unsealing various documents filed with respect to the latest damages reports from the experts, the challenges to those damage reports, and the responses to the challenges. Since those issues have been
decided, we have not converted all of those documents to html. However, if there are previously redacted sections of particular interest, we will try to add them later.
Google has also asked Oracle to withdraw the Oracle motion to amend the infringement contentions pertinent to the '205 patent since that patent has now been withdrawn with prejudice from the suit. (812 [PDF])
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Docket
03/15/2012 - 797 - MOTION to
Strike ORACLE AMERICA, INC.S NOTICE OF MOTION AND MOTION TO EXCLUDE
PORTIONS OF THE SUPPLEMENTAL EXPERT REPORT OF DR. ALAN J. COX [PUBLIC
REDACTED VERSION] filed by Oracle America, Inc.. Responses due by
3/29/2012. Replies due by 4/5/2012. (Attachments: # 1 Exhibit Dearborn
Declaration, Ex. A, # 2 Exhibit Dearborn
Declaration, Ex. B)(Holtzman, Steven) (Filed on 3/15/2012) (Entered:
03/15/2012)
03/15/2012 - 798 - MOTION to
Strike ORACLE AMERICA, INC.S MOTION TO STRIKE PORTIONS OF GREGORY
LEONARDS SUPPLEMENTAL REPORT [PUBLIC REDACTED VERSION] filed by Oracle
America, Inc.. Responses due by 3/29/2012. Replies due by 4/5/2012.
(Attachments: # 1 Exhibit
Richardson Declaration, Ex. A, # 2 Exhibit Richardson
Declaration, Ex. C)(Holtzman, Steven) (Filed on 3/15/2012) (Entered:
03/15/2012)
03/15/2012 - 799 - DOCUMENT E-FILED UNDER SEAL re 789 Order on
Administrative Motion to File Under Seal ORACLE AMERICA, INC.S NOTICE OF
MOTION AND MOTION TO EXCLUDE PORTIONS OF THE SUPPLEMENTAL EXPERT REPORT
OF DR. ALAN J. COX by Oracle America, Inc.. (Holtzman, Steven) (Filed on
3/15/2012) (Entered: 03/15/2012)
03/15/2012 - 800 - DOCUMENT E-FILED UNDER SEAL re 789 Order on
Administrative Motion to File Under Seal ORACLE AMERICA, INC.S MOTION TO
STRIKE PORTIONS OF GREGORY LEONARDS SUPPLEMENTAL REPORT by Oracle
America, Inc.. (Attachments: # 1 Exhibit Richardson Declaration, Ex. D,
# 2 Exhibit Richardson Declaration, Ex. E, # 3 Exhibit Richardson
Declaration, Ex. G, # 4 Exhibit Richardson Declaration, Ex. H)(Holtzman,
Steven) (Filed on 3/15/2012) (Entered: 03/15/2012)
03/15/2012 - 801 - DOCUMENT E-FILED UNDER SEAL re 789 Order on
Administrative Motion to File Under Seal ORACLE AMERICA, INC.S
OPPOSITION TO GOOGLES MOTION TO STRIKE PORTIONS OF THIRD EXPERT REPORT
BY IAIN COCKBURN AND EXPERT REPORT BY STEVEN SHUGAN by Oracle America,
Inc.. (Attachments: # 1 Exhibit Norton Declaration, Ex. E, # 2 Exhibit
Norton Declaration, Ex. G, # 3 Exhibit Norton Declaration, Ex.
H)(Holtzman, Steven) (Filed on 3/15/2012) (Entered: 03/15/2012)
03/15/2012 - 802 - DOCUMENT E-FILED UNDER SEAL re 789 Order on
Administrative Motion to File Under Seal ORACLE AMERICA, INC.S REPLY IN
SUPPORT OF ITS MOTION TO STRIKE PORTIONS OF GREGORY K. LEONARDS
SUPPLEMENTAL REPORT by Oracle America, Inc.. (Holtzman, Steven) (Filed
on 3/15/2012) (Entered: 03/15/2012)
03/15/2012 - 803 - MOTION to
Strike 789 Order on Administrative Motion to File Under Seal MOTION TO
STRIKE COCKBURN AND SHUGAN EXPERT REPORTS [PUBLIC VERSION] filed by
Google Inc.. Responses due by 3/29/2012. Replies due by 4/5/2012. (Van
Nest, Robert) (Filed on 3/15/2012) (Entered: 03/15/2012)
03/15/2012 - 804 - MOTION to
Continue The Trial Date From April 16, 2012 to April 23, 2012 filed by
Google Inc.. (Attachments: # 1 Declaration,
# 2 Proposed
Order)(Van Nest, Robert) (Filed on 3/15/2012) (Entered: 03/15/2012)
03/15/2012 - 805 - EXHIBITS
re 719 Declaration in Support,, of Motion to Strike Cockburn and Shugan
(Exhibit A) filed byGoogle Inc.. (Attachments: # 1 Exhibit B, #
2 Exhibit
D, # 3 Exhibit F, #
4 Exhibit
G)(Related document(s) 719 ) (Purcell, Daniel) (Filed on 3/15/2012)
(Entered: 03/15/2012)
03/15/2012 - 806 - REPLY (re
803 MOTION to Strike 789 Order on Administrative Motion to File Under
Seal MOTION TO STRIKE COCKBURN AND SHUGAN EXPERT REPORTS [PUBLIC
VERSION] ) REPLY IN SUPPORT OF MOTION TO STRIKE COCKBURN AND SHUGAN
EXPERT REPORTS [PUBLIC VERSION] filed byGoogle Inc.. (Attachments: # 1
Exhibit EX. A
to Mullen Decl. [PUBLIC], # 2 Exhibit EX. B to
Mullen Decl. [PUBLIC], # 3 Exhibit EX. C to
Mullen Decl. [PUBLIC], # 4 Exhibit EX. D to
Mullen Decl. [PUBLIC], # 5 Exhibit EX. E to
Mullen Decl. [PUBLIC])(Purcell, Daniel) (Filed on 3/15/2012)
(Entered: 03/15/2012)
03/15/2012 - 807 - DOCUMENT E-FILED UNDER SEAL re 789 Order on
Administrative Motion to File Under Seal MOTION TO STRIKE COCKBURN AND
SHUGAN EXPERT REPORTS by Google Inc.. (Attachments: # 1 Exhibit EX. A to
Zimmer Declaration, # 2 Exhibit EX. H to Zimmer Declaration, # 3 Exhibit
EX. I to Zimmer Declaration, # 4 Exhibit EX. J to Zimmer Declaration, #
5 Exhibit EX. K to Zimmer Declaration)(Purcell, Daniel) (Filed on
3/15/2012) (Entered: 03/15/2012)
03/15/2012 - 808 - DOCUMENT E-FILED UNDER SEAL re 789 Order on
Administrative Motion to File Under Seal REPLY IN SUPPORT OF MOTION TO
STRIKE COCKBURN AND SHUGAN EXPERT REPORTS by Google Inc.. (Attachments:
# 1 Exhibit EX A to Mullen Declaration, # 2 Exhibit EX B to Mullen
Declaration, # 3 Exhibit EX C to Mullen Declaration, # 4 Exhibit EX D to
Mullen Declaration, # 5 Exhibit EX E to Mullen Declaration)(Purcell,
Daniel) (Filed on 3/15/2012) (Entered: 03/15/2012)
03/15/2012 - 809 - DOCUMENT E-FILED UNDER SEAL re 789 Order on
Administrative Motion to File Under Seal OPPOSITION TO MOTION TO STRIKE
LEONARD SUPPLEMENTAL EXPERT REPORT by Google Inc.. (Attachments: # 1
Exhibit EX F to Zimmer Declaration)(Purcell, Daniel) (Filed on
3/15/2012) (Entered: 03/15/2012)
03/16/2012 - 810 - MOTION to
Strike Cockburn and Shugan Expert Reports (PUBLIC VERSION) filed by
Google Inc.. Responses due by 3/30/2012. Replies due by 4/6/2012. (Van
Nest, Robert) (Filed on 3/16/2012) (Entered: 03/16/2012)
03/16/2012 - 811 - Statement
re 705 Order (Joint) Update Re Third Damage Report Costs by Google Inc..
(Van Nest, Robert) (Filed on 3/16/2012) (Entered: 03/16/2012)
03/16/2012 - 812 - RESPONSE
(re 782 MOTION to Amend/Correct Oracle's '205 Patent Infringement
Contentions and Supplement Expert Reports ) filed byGoogle Inc..
(Francis, Mark) (Filed on 3/16/2012) (Entered: 03/16/2012)
03/16/2012 - 813 -
Declaration of Mark H. Francis in Support of 812 Opposition/Response to
Motion to Amend/Correct Oracle's '205 Patent Infringement Contentions
and Supplement Expert Reports filed byGoogle Inc.. (Attachments: # 1 Exhibit A, #
2 Exhibit
B, # 3 Exhibit
C)(Related document(s) 812 ) (Francis, Mark) (Filed on 3/16/2012)
(Entered: 03/16/2012)
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Documents
804
KEKER & VAN NEST LLP
ROBERT A. VAN NEST - # 84065
[email]
CHRISTA M. ANDERSON - # 184325
[email]
DANIEL PURCELL - # 191424
[email address telephone fax]
KING & SPALDING LLP
SCOTT T. WEINGAERTNER (Pro Hac Vice) [email]
ROBERT F. PERRY
[email]
BRUCE W. BABER (Pro Hac Vice)
[address telephone fax]
KING & SPALDING LLP
DONALD F. ZIMMER, JR. - #112279
[email]
CHERYL A. SABNIS - #224323
[email address telephone fax]
IAN C. BALLON - #141819
[email]
HEATHER MEEKER - #172148
[email]
GREENBERG TRAURIG, LLP
[address telephone fax]
Attorneys for Defendant
GOOGLE INC.
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
GOOGLE INC.’S MOTION TO
CONTINUE THE TRIAL DATE FROM
APRIL 16, 2012 TO APRIL 23, 2012
Dept: Courtroom 8, 19th Flr.
Judge: Hon. William Alsup
NOTICE OF MOTION AND MOTION TO CONTINUE TRIAL
PLEASE TAKE NOTICE that Defendant Google Inc. (“Google”) hereby moves to continue the April 16, 2012 trial date to April 23, 2012. This Motion is based on the following memorandum of points and authorities in support, the Declaration of Robert A. Van Nest in support thereof, the entire record in this matter, and on such evidence as may be presented at any hearing of this Motion, on a date and at a time to be determined by the Court.
Dated: March 15, 2012
KEKER & VAN NEST LLP
/s/ Robert A. Van Nest
By: ROBERT A. VAN NEST
Attorneys for Defendant GOOGLE INC.
1
MEMORANDUM OF POINTS AND AUTHORITIES
I. INTRODUCTION
The Court should continue the trial one week, from April 16, 2012 to April 23, 2012.
There is good cause for a continuance because Google's lead trial counsel (along with several
other attorneys on the Google trial team) is set for an April 2 trial in another case in the Eastern
District of Texas. A one-week continuance would allow lead counsel to return from Texas in
time for the start of this trial. A short continuance would not prejudice Oracle, and would leave
open a full eight weeks of trial time in which to try this case. Google's motion should be granted.
II. BACKGROUND
Google's lead trial counsel is Robert Van Nest of Keker & Van Nest LLP. Declaration of
Robert A. Van Nest ("Van Nest Decl.") ∂ 2. In a March 14, 2012 letter to the Court [Dkt. 792]
Mr. Van Nest advised the Court of two pending trial commitments that conflicted with the April
16 trial date in this case. Since that letter was filed, Judge Davis has moved the Commonwealth
Scientific and Industrial Research Organization v. Lenovo (United States) Inc., E.D. Tex. No.
6:09-cv-399 LED, trial from April 9, 2012 to April 2, 2012. And Judge Koh has issued an order
proposing that the start of the Genentech Inc. v. Trustees of the University of Pennsylvania, N.D.
Cal. No. 5:10-cv-02037 LHK (PSG) trial be moved from June 11, 2012 to June 25, 2012.
Assuming the Genentech trial is in fact delayed two weeks,1 there would exist an
available eight-week window from April 23 to June 15 in which the Court could try this case.
Google therefore modifies its original request [Dkt. 792] to seek a one-week continuance of the
trial date in this case, from April 16, 2012 to April 23, 2012. As stated in Google's March 14
letter to the Court, Mr. Van Nest would promptly advise the Court of any changes to the trial
schedules in the above-referenced cases. Van Nest Decl. ¶ 6.
III. ARGUMENT
A court schedule may be modified upon a showing of good cause. Fed. R. Civ. P.
16(b)(4); see also Civ. L.R. 6-3. There is good cause for a one-week continuance here because
2
Google's lead counsel (and other attorneys on the Google trial team) needs time to return from
the Commonwealth Scientific trial in Texas and make final preparations for the start of the trial in
this case. See, e.g., Felder v. Puthuff, C-93-20303-RPA (EAI), 1995 WL 16821 (N.D. Cal. Jan.
13, 1995) (granting a motion to continue trial date where counsel had an immovable trial conflict
in another case). Accordingly, the Court should grant Google's motion.
Notwithstanding Judge Davis' order advancing the Commonwealth Scientific trial date by
one week, a short continuance of the trial date in this case is necessary to ensure that Mr. Van
Nest and several other members of the Google trial team are able to be prepared for and present at
the start of this trial. Although the scope of this case has been significantly reduced as a result of
pretrial proceedings, Oracle is still seeking nearly $1 billion in damages. The Commonwealth
Scientific trial poses a potential conflict with the start of this trial for Mr. Van Nest and two other
attorneys on Google's trial team who also are involved in the Commonwealth Scientific trial:
namely, Christa Anderson and Matthias Kamber. Van Nest Decl. ¶ 3. The Commonwealth
Scientific trial is now set to begin on April 2. Van Nest Decl. ¶ 4. The seven defendants in that
case have estimated that trial will require ten days. Id. If the trial lasts ten days, juror
deliberations may well continue past the April 16, 2012 trial date in this case. And even if juror
deliberations conclude before April 16, Mr. Van Nest and the other attorneys on both trial teams
still would need time to return from Texas and make final preparations for this trial.
A one-week continuance would permit Mr. Van Nest to fulfill his professional obligations
to his clients in the Commonwealth Scientific case, while still serving as lead trial counsel to
Google for the entirety of this matter. Moreover, granting a continuance would not cause a
conflict with Judge Koh's trial setting in the Genentech case, assuming that that trial is in fact
delayed by two weeks as Judge Koh has proposed. This Court therefore would have an eight-week window -- April 23 to June 15 -- in which all counsel would be available to try this case.
Accordingly, good cause exists for the requested continuance.
A one-week continuance will not prejudice Oracle. Android was first announced over
four years ago and has now been on the market for over three years. The difference between an
April 16 trial and an April 23 trial is insignificant. The motion to continue should be granted.
3
IV. CONCLUSION
For the foregoing reasons, Google respectfully requests that the Court continue the trial
date from April 16, 2012 to April 23, 2012.
Dated: March 15, 2012
KEKER & VAN NEST LLP
/s/ Robert A. Van Nest
By: ROBERT A. VAN NEST
Attorneys for Defendant GOOGLE INC.
_______________
1 The parties in the Genentech case have until March 16 to respond to Judge Koh’s proposal.
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Authored by: nsomos on Monday, March 19 2012 @ 08:12 AM EDT |
If any corrections are in order, this is a fine place for them to be posted.
It may be helpful to summarize the correction in the posts title.[ Reply to This | # ]
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Authored by: feldegast on Monday, March 19 2012 @ 08:20 AM EDT |
Please make links clickable
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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 | # ]
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Authored by: feldegast on Monday, March 19 2012 @ 08:22 AM EDT |
Please make links clickable
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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 | # ]
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Authored by: feldegast on Monday, March 19 2012 @ 08:23 AM EDT |
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 | # ]
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Authored by: darrellb on Monday, March 19 2012 @ 09:25 AM EDT |
The crux of the issue is that Oracle has mistakenly asserted
throughout this case that the
accused dexopt functionality is part of the Dalvik
virtual machine and operates when applications are executed, but now realizes
that its infringement theory is inherently flawed. . . Oracle finally recognizes
that dexopt does not optimize an application that is running in the Dalvik
virtual machine, but rather at “install time,” . . . Oracle
finally realizes their enormous error. --- darrellB [ Reply to This | # ]
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Authored by: Ian Al on Tuesday, March 20 2012 @ 03:43 AM EDT |
My thanks to darrellb pointing to 812. As Google pointed out, '205 died a
painful death. As a result, I almost missed the hilarious Twister game played by
Oracle trying to cover the judge's newly served coloured squares. They lost this
round.
It's a long post and is given in the child posting.
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Regards
Ian Al
Software Patents: It's the disclosed functions in the patent, stupid![ Reply to This | # ]
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