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From the Courtroom: Oracle v. Google, Day 1 of Patent Phase ~pj - Updated 10Xs- Partial Verdict; Oracle Wins Nothing That Matter
Monday, May 07 2012 @ 12:27 PM EDT

Our reporter is in the courtroom today, you'll be happy to know. And we have his first report. So far, there has been oral argument on the pretrial motions. But keep on stopping by, as we'll be covering the whole day, including a partial or total verdict from the jury on phase one.

Mark has all the motions they are arging about and all other weekend filings as PDFs here, so you can follow along.

If you recall, the trial has been split up into three parts. The copyright phase is ended, with the jury trying to reach a unanimous verdict. So they are beginning the patent phase, and that means more motions in limine, arguing about who can testify and what they are allowed to say in front of the jury.

[ Recap of the day: Google won everything but the one issue that the judge has to decide anyway, the API SSO issue. The jury found, as they had been instructed to assume for the purposes of deliberation, that APIs can be copyrighted, the structure, sequence and arrangement of APIs, but that is by no means established. The same question, in a b) section, asked if fair use excused any infringement if found, and the jury couldn't resolve that issue. But the judge has to decide whether or not that is true, that APIs can be protected by copyright. That comes later this month. Meanwhile, Oracle prevailed only on 9 lines of code that Google admitted prior to trial to have included by mistake and then removed from current Android. Oracle's own expert, the judge pointed out in court, valued those 9 lines of code at zero. This is 9 lines out of millions. So that means, if we are looking at damages, that so far Oracle has won nothing. There is no liability. You can't have infringement without considering fair use, Google asserts, and there will be briefing on that. Somebody has to decide that fair use issue. And then the judge has to decide about the API copyrightability issue. If he rules that APIs can't be copyrighted, as the EU Court of Justice just ruled, then fair use is moot. And Oracle takes nothing at all from the copyright phase of this litigation, and this was heralded far and wide by Oracle people as the big ticket item, if you recall.

Don't let anyone fool you. Today was a major victory for Google. That's why after the jury left, our reporter says that Google's table was laughing, and Oracle's mighty glum. And I see some journalists are surprised or confused, because they have been listening to a steady flow of Oracle FUD from the wrong people. Remember the headlines about this being a $6 billion dollar case? It never was and now it never will be. Oracle attorney Michael Jacobs was reported to have visited the press room at the courthouse during the trial for a talk with the gathered journalists. So did a PR person from his firm. I mean, come on, fellas. And that doesn't even count the huge stream of misinformation from ... well, you know. And look at the outcome. Not what you were told to expect, is it? Live and learn, y'all. Live and learn. If a person is paid by Oracle, why would you take it as necessarily so? And here's why the API decision matters so much.]

Jump To Comments

[Update 1, Update 2, Update 3
Update 4, Update 5, Update 6
Update 7, Update 8, Update 9
Update 10 ]

[Update 6: The judge has stated, pending judgment as a matter of law, that there is "zero finding of copyright liability" other than the 9 lines of code to which Oracle's damages report attributes no value. A good day for Google overall. The Washington Post quotes him like this: "There has been zero finding of liability on copyright, the issue of fair use is still in play,” Alsup said after the verdict was read.]

Here's mirror_slap's first report, which takes us up to the first break:

Oracle v. Google, Monday May 7, 2012

Arrive 8:00AM

Mr. Jacobs is citing the Tim Lindholm book, regarding a footnote on patents.

Google: [Robert Van Nest] Regarding Jonathan Schwartz, he said that Sun uses its patents for defensive purposes, not offensive purposes. "Innovate, not litigate". Mention is made of the filing with the SEC of the fact that Mr. Schwartz' blog as CEO was indeed corporate.]

Google: There is nothing about the 104 from Lindholm, regarding one line in a book published in 1997 that doesn't apply to any patent in this case.

"I'd rather not call Mr. Schwartz."

685 patent is relevant.

Whole chapter is dropped in second edition in 1999.

Google: Tim Lindholm had no involvement in Dalvik. No discussion about any of these patents in suit with anyone at Google. Early on he was in a couple of meetings to introduce his former colleagues at Sun. If they want to put on a side show...

Oracle: The chapter was dropped, as the documentation was refined, the editors decide to drop it.

Judge: Asks questions regarding whether Mr. Lindholm is here, to get at the question of what was intended. Google cannot produce Lindholm; he is in San Francisco but is not in the building.

Oracle: Lindholm knew about the technology and the rights.

Google: I do think, if Your Honor is inclined to do that, we should ask Mr. Lindholm.

Judge: [He is annoyed that Lindholm isn't here.]

Google: Wants this not to happen in front of the jury.

Judge: Will allow it. Here's why: it speaks to willfulness. What troubles me the most about it, while he wrote about the 685, he didn't write about the 104.

Judge: [To Oracle] You cannot show that email to the jury until you establish the foundation for it. You must start with the book and do it the hard way. Somehow you will have to equate the two. No witness on either side will admit to anything that would favor the other side.

Judge: [With regard to Mr. Schwartz]
1. In litigation, I've practiced law long enough to recognize a spring gun. When he was asked, did Sun ever make a decision not to sue, and it was a yes or no question, but he said that they didn't have grounds to sue. It communicates so much privileged communications. Even if it's true that they felt they had no grounds to sue on, unless they communicated it to Google... had a motion to strike been issued, I would have granted it immediately ("In a heartbeat"). The witness should have been told not to utter statements like that, and yet it came out. If Mr. Schwartz is going to testify again on matters that the judge will decide, it will only be in front of the judge, because I can sort out the attorney-client privelege. If there is anything for the jury, then he will testify in front of the jury. The question is, does it speak to willfullness.

This broad pronouncement from Jonathan Schwartz is probative of nothing, unless we open up the attorney-client privilege.

Can the judge instruct the jury to disregard the previous testimony? I have not yet ruled on this. I am not going to strike it at this late date. The question is for the closing arguments.

[Back to Tim Lindholm] I think that it's not the same kettle of fish, not the same analysis. Important caveat: cannot even use the email in your Oracle opening statement. You have not connected the 685 and 104.

Andy Rubin motion, [Christa Anderson]... exclusion of testimony... what Google did and didn't do in terms of investigating Sun's patent portfolio. Goes to the period where neither Sun nor Oracle disclosed the patents in suit. It would confuse the jury.

Judge: What is the law on this... the willful blindness.

Google: Plaintiff has to show knowledge of the patent. Standard is higher than negligence or indifference. It is not enough to show that a company made a decision not to investigate another company's patents. You have to show that an internal attorney had told the company that they needed to investigate, to establish willful blindness. A deliberate act not to learn of a specific patent. Sun/Oracle didn't talk patents with Andy Rubin. It wasn't until Eustace sent an email in the summer of 2010, "we are not going to pay for IP that you are not going to disclose to us", which would have forced on Google their going out to look at all the Sun/ Oracle patent portfolio.

Oracle: Opposition to this motion-- series of emails in which patents were discussed. Andy Rubin 2006, "Sun threatened to sue us over patents, so we walked away from discussions".

This is a case of intense interactions between these companies. Deliberately made no effort to do any investigation. Gets the whole analysis backwards. Google knew how extensive Sun's patent portfolio was. It ups the ante on the other company to do the analysis of the portfolio. This case really is like GlobalTech. As of July 20, 2010, Google knew of the 104. If Google would stipulate to indirect infringement, then this would go away.

Google: With regard to the evidence that Oracle described, this is not relevant. What did Mr. Rubin and Google do to investigate these patents? Clearly in these documents, there would need to be licenses if Google chose to take Sun's IP as a part of entering into a partnership.

With regard to the 104 patent, Mr. Jacobs wants to disclose Rubin email based on July 2010, but Mr. Lindholm has testified that he never engaged in a patent investigation. Misleading for the jury. Judge: Motion denied. It may be true that this item would prove willfullness, but the party with the burden of proof must proceed one step at a time. I agree that one item of testimony is not enough to carry. This is an easy problem to solve, because I will direct the jury regarding what the law is.

Motion to reject Peter Kessler by Google: No evidence of alleged use of the 104 patent by Oracle, but they don't address the crux of the matter... the steps taken to turn off the features used from the 104 (Mr. Van Dette). Mr. Van Dette didn't do the modifications. The reason that we are having this problem is that Oracle has a foundation problem. They never disclosed to Mr. Kessler.

Judge: Rule 26 only requires that he ... Kessler wasn't disclosed. Why are you trying to bring him in?

Oracle: [Mr. Norton] Kessler will be a fact witness, not an expert witness. Google will try to say that Mr. Van Dette was lying about making the changes to the code. Mr. Berger then took those changes, and loaded them on an Android phone. Google disclosed PK on their witness list for performance issues.

Judge: What are my rules on that? Foundation witness for who?

Oracle: Dr. Mitchell. His report relies upon work by a couple of engineers, who will need to be put on the stand.

Google: Kessler is not just a fact witness. It is not correct or accurate.

Judge: They say they will call Van Dette.

Google: They can do that. Page 29 of Van Dette report... " modifications were made." Berger, page 5, "..."

Judge: Is Mr. Berger a witness?

Google: Oracle wouldn't make him available.

Oracle: We don't intend to call Kessler as a foundation witness.

Judge: Did Berger make the changes?

Oracle: No.

Oracle: Mr. Berger made images that were loaded onto Android phones.

Oracle: Google has become confused.

Judge: Does Dr. Mitchell in any way rely on what Mr. Berger did?

Oracle: No.

Judge: Does Dr. Cockburn rely on Berger?

Oracle: Yes.

Judge: Why not produce him (Berger) for deposition then?

Oracle: We didn't think we needed him.

Judge: Is Berger an employee of Oracle?

Oracle: Yes.

Judge: Here's the ruling. With regard to Mr. Berger- want him made available for a half-day deposition, by Thursday, for fairness.

Oracle: The Oracle employee lives and works in Israel.

Judge: I will give you a little more time. Refers to spoon-feeding of expert witnesses. Both of you have done it. You have to get Mr. Berger over here before phase 3 of the trial.

Judge: [To Google] Do you want Mr. Berger here?

Google: Would like to have him here.

Judge: [Gives Oracle a little extra time... had said by this Thursday, but gives them the weekend.]

Regarding compatibility testing.

Google: Compatibility test suite doesn't tell you anything definitive. 520 is targeted at development kit. Regarding the creation of an array, a complete red herring. Believe it would be prejudicial.

Oracle: [Long argument about what the CTS tests, who does the testing, and the "intricate web" between Google and its handset manufacturers.]

Google: Oracle might have a point if the CTS had anything to do with the point.

Oracle: [Long argument...]

Judge: ...

Oracle: Tight web between Google and the handset makers. Will put on evidence that the handset makers do run the CTS. The proof will be in the documents.

Judge: Motion denied. This is not prejudicial. It proves a tiny piece of their case.

End of motions in limine.

Judge: What is the difference between an ecosystem, what is the platform? We are getting into higher and higher platitudes.

Oracle: [Tries to define the platform, and that the developers comprise the ecosystem.]

Google: Objections to opening statements will come next.

[ 9:05 15-minute break ]

So the SEC filing is now part of the record. Aren't you glad mirror_slap is there again? The tweeting journalists didn't even mention that. Meanwhile I see reports on what Safra Katz is wearing, Chanel jackets and gold buttons and what not. Who cares about that? I certainly don't. I'm sure you guys care even less. I don't mind color commentary, actually, but only after the important things are covered. Here's the SEC filing and why it matters.

While we await the next report, here's more on the serious worries people are expressing about APIs possibly becoming copyrightable, if Oracle prevails, from Robert McMillan's article today in Wired, "Could an Oracle Win Against Google Blow Up the Cloud?":

The conventional wisdom in the coder community has been that it’s fine to reproduce the interface of someone else’s APIs, so long as you don’t actually copy their software. So if the court finds that APIs are copyrightable, it could have major implications for any software that uses APIs without explicit permission — Linux for example. But it could affect things in the cloud, where there are several efforts to clone Amazon’s Web Services APIs.

“If APIs can be copy-protected, that would be incredibly destructive to the internet as a whole for so many different reasons,” says George Reese, Chief Technology Officer with enStratus Networks, a seller of cloud management services. “But with respect to cloud, in particular, it would put any company that has implemented the Amazon APIs at risk unless they have some kind of agreement with Amazon on those APIs.”

An open source effort called OpenStack is the most prominent example of a project that mimics Amazon’s APIs, and the case could give Amazon legal grounds to seek licensing deals from OpenStack users such as Hewlett-Packard and Rackspace.

But other projects reproduce Amazon’s APIs, including Citrix’s CloudStack project and middleware such as Jclouds and Fog.

“The problems that would face cloud computing are many of the same problems we’d see, frankly, all over the internet if APIs were copyrightable,” says Julie Samuels, an attorney with the Electronic Frontier Foundation who has been following the trial....

On the bright side, at least for open source hackers, is the possibility that a ruling in favor of copyright-protecting APIs could push cloud providers to come up with new, open, standard APIs. But it’s not much of a sliver lining, according to enStratus’s Reese. “While that’s potentially useful for cloud [computing],” he says. “I am much more concerned about the implication for the internet as a whole. Or, more realistically, America’s role in building internet companies. No other country is going to honor the idea of copyrighted APIs.”

As you see, Google isn't alone in being astonished and surprised to even have to respond to such a claim. It certainly could never have anticipated it.

Update: Uh oh. Mirror_slaps says there's a question from the jury:

The judge is back. A juror said that they had conversations over the weekend about the trial. Google has questions of the nature, extent of disclosure from other jurors.

Update 2: The next report on the juror issue:

About to bring back the jury, with the judge telling them what the law is, tell them that it is not relevant, and ask whether anyone on the jury would be swayed by what the juror has said. All parties agree to this.
The issue was apparently about how long patents last, which isn't relevant to the copyright phase the jurors are deliberating at the moment. And the juror's husband told her something that isn't factual, which is why the judge clarified the law. My question is, why is she talking with her husband about this trial? Or was it a random remark? Things are going forward. Can you imagine if there was a mistrial now? The expense, the effort of a do-over. Here are the details:
Oracle v. Google, Monday May 6, part 2

[ Google was using a couple of attorneys in the first part of today's testimony who were new to me, and to the court reporter. She came up to get their cards during the break. My guess is that they are patent law specialists. ]

[The 15-minute break that started at 9:05 has now stretched to 9:30.]

Objections to Opening Statements

Google: Two disputed slides in plaintiff's opening. Slide 34... assumed that this would go out with Judge Alsup's ruling this morning. Another Tim Lindholm email.

Judge: I need to see the email.

Google: TX 326- a long email from Bob Lee to Lindholm, thread. Feb 2009 from Dave Sobota, to Lindholm and Lee... written by Brett Slatkin, passed on to Dave Sobota. Until there is somethign linking in Lindholm, it would be inappropriate to use. Asking that it not be used in the opening.

Judge: Is it in evidence?

Google: Yes.

Judge: Motion denied. [ getting a bit peeved? ]

Google: Second slide , TX 1061, page 6...

Judge: What is relevence?

Oracle: Google induces patent infringement by phone makers.

Google: Doesn't go to any of that.

Oracle: Large number of activations each day, Google was willing to look the other way on patents.

Google: Limited to 8 phone models for which they are claiming infringement. Might be relevant in phase 3. Covers ALL activations, not just for the models in question.

Judge: Motion denied. Will allow its use.

Judge: Anything else?

Oracle: Designations... Mr. Morrow, Mr. Morrill...

32, 46.16, r46.17, 46.18, 46.29, 46.192, 46.103, 106, 197,225,262,896,46.2,46.2,46.3,46.4,46.5,46.6,46.7,.46.8,46.9, 46.12-46.19. -- [A whole raft of stipulated exhibits. I couldn't catch them all. I believe that these will be made available by the court, later today or tomorrow.]

Google: Regarding deposition of Mr. Agrawal. All agreed that 3 hours is sufficient.

[ 9:45AM - Nothing more to do for Phase 2; taking a break, waiting on the jury. They were on break during our 9AM break, but there were no further questions from them.]

[ 10:10 back ]

Juror Issue

Judge: Why do this as a sidebar?

Google: To avoid further contamination of the jury.

Judge: Let's bring in [the foreman], instruct the jury to stop deliberating until we can find out more.

[Foreman comes in and is seated. ]

One of the jurors has indicated that he/she has had conversations regarding the copyright/patent over the weekend.

Judge: Counsel must object immediately. Do not hold back and then come back later. What is it that she said?

Foreman: Internal question/answer period. She said that her husband has experience with patents and copyrights. When she was talking with him this weekend, she said that he said that there were ...

Google: Don't want to know what the question was.

Foreman: We said that we were uncomfortable about the discussion, that she was taking what she was learning at home and was applying it to the copyright phase.

Judge: Is that the essence of it, or can you say more without exposing your deliberative process?

Google: Was there anythign else of substance said in the jury room, that wasn't already discussed?

Judge: Was the point that she was trying to make that she was disagreeing with a point of law in the instructions that I had given to the jury?

Foreman: It's what's on each side of the "or" question.

Judge: I think that addresses the general point. Dawn will take you back to the jury room. Do not deliberate any further. behave as if you are on break until I get to the bottom of this. Bring in Ms. [the juror in question]

Judge: Come in. [Sits.]

Judge: It has been reported that...

Juror: He is not a patent attorney, he holds 3 patents. It was his birthday over the weekend, and I asked him how long patents lasted. We knew that copyrights lasted 99 years. He said that they last for 17 years.

Judge: And that was what you said in the jury room? [Yes] Any other discussion with him? [No.]

Google: Please probe any influence either way on her deliberations.

Judge: Has that influenced you in any way? [No]

Judge: Go back to the jury room. Tell them not to deliberate until I give them the green light.

[Juror leaves ]

Judge: Anyone want us to bring in more jurors?

Oracle: No, Your Honor.

Google: [Wants to bring in one more person to gauge whether what she said she said and what the foreman said she said jibes. There were some discrepancies.]

[Discussion of changes in patent law timeframes.]

Judge: Any objection if I say to the jury that the life of the patent is 20 years from date of application and 17 years from date of issuance?

Google: Needs to be said to be irrelevant.

[Jury comes back in]

Judge: You must not discuss this case with anyone. Not your loved ones. You must decide this case based on the law as I instruct you.

[Describes the timeframe, 17 years from issuance, or 20 years from application.] Irrelevant to your decision making. Can understand how it might have come up in the deliberations, but it should not be a factor in your deliberations. Is there anyone over there who thinks that they've heard anything from another juror that would prevent you from reaching a decision in this case? Raise your hand.

[ Nobody does.]

[ break again 10:20 ]

And they go back to deliberate some more.

Update 3: The jury says it has a partial verdict. Can't resolve one issue. So we'll be hearing it read shortly. Caleb Garling tweets:

A. Has Oracle proven that Google has infringed the overall structure, sequence and organization of copyrighted works? YES...

As to the documentation for the 37 Java API packages in question taken as a group: A. Has Oracle proven that Google has infringed? NO...

The rangeCheck method in TimSort.java and ComparableTimSort.Java YES, infringing....

Source code in seven “Impl.java” files and the one “ACL” file? NO, not infringing....

The English-language comments in CodeSourceTest.java and CollectionCertStoreParameters Test.java? NO, not infringing

Judge Alsup, then, will have to rule on the copyrightability of APIs. The jurors couldn't get unanimous on the fair use issue. That's the one they skipped. But it may not matter, in that the judge is on the hook now to be the ultimate decider.

Update 4: Here's mirror_slap's account:

Oracle v. Google, Monday May 7, part 3

11:10am we have verdict... press comes in, Judge Alsup.

Note from jury, Impasse has been reached on the one issue that remains undecided.

Judge: Will bring them in and get the verdict on the remaining parts.

Jury comes in.

Judge: We received your note about the impasse being reached on the one issue that cannot be decided. Ready to render the verdict now. Signed and dated? [Yes]

Judge: Marshall will hand it to me, and I will check it to be sure that it is in the proper form.

Judge: The clerk will read the verdict form, with your answers.

Dawn will skip over the one:

1. a. yes [Has Oracle proven that Google has infringed the overall structure, sequence and organization of copyrighted works?]
1. b. unanswered.

2. documentation. no [As to the documentation for the 37 Java API packages in question taken as a group: A. Has Oracle proven that Google has infringed?]

3. [Has Oracle proven that Google’s conceded use of the following was infringing, the only issue being whether such use was de minimis:]
a. yes, infringing. [The rangeCheck method in TimSort.java and ComparableTimSort.Java]
b. no, not infringing. [Source code in seven “Impl.java” files and the one “ACL” file]
c. english language comments, no, not infringing [The English-language comments in CodeSourceTest.java and CollectionCertStoreParameters Test.java]

4. a. yes [A. Has Google proven that Sun and/or Oracle engaged in conduct Sun and/or Oracle knew or should have known would reasonably lead Google to believe that it would not need a license to use the structure, sequence, and organization of the copyrighted compilable code?]
b. no. [B. If so, has Google proven that it in fact reasonably relied on such conduct by Sun and/or Oracle in deciding to use the structure, sequence, and organization of the copyrighted compilable code without obtaining a license?]

The verdict form is here, if you want to match them up yourself. Even better, they've posted the filled in verdict form [PDF].

What does it mean? It means all Oracle won that matters is regarding the APIs, which the judge, unfortunately told the jury to assume were copyrightable, without mentioning to them that he would actually decide that. So unless the judge agrees with Oracle that APIs are copyrightable, Oracle gets pretty much no serious money from the copyright side of the trial.

Of course, there will be more to play out, the patent phase, and then there will be a damages phase to decide how much money Oracle should be paid for 9 lines of code that were admitted to have been a mistake and were donated to Sun/Oracle and included in Java by them. I can't imagine the judge allowing the parties to have to go through damages witnesses about APIs unless he plans to rule them copyrightable, but you never know.

Hilarious. Well, the jury did pretty well, considering all they were *not* told. Clearly they believed Jonathan Schwartz over Scott McNealy. Now it's up to the judge.

And he has the jury now starting the patent phase. They are watching a video about patents.[PJ: Probably this one.] Google, according to James Niccolai, says it will request a mistrial regarding the unanswered question. I was wondering when that would happen. How could it not? Somebody some time has to decide the fair use issue. Who? The parties are told to brief the issue. More briefs, all because the judge postponed ruling on the one issue that matters the most. But as you can see in update 6, above, he has stated that so far, there is no copyright liability found, other than the 9 lines of code, which Oracle's own expert stated have no monetary value. So far, then, Oracle lost big time in the copyright phase. Big time.

Update 5: Google has issued a statement:

"We appreciate the jury's efforts, and know that fair use and infringement are two sides of the same coin. The core issue is whether the APIs here are copyrightable, and that's for the court to decide. We expect to prevail on this issue and Oracle's other claims."
Brandon Bailey of Mercury News reports that Oracle declined to comment. Here's what they should say: Sorry, everyone, for costing the courts and Google megabucks to defend copyright claims of no value, and which so far entitle us to zero dollars in damages.

Speaking of damages, David Boies reportedly asked, with the jury out of the room, for "infringer's profits" from the nine lines. Judge Alsup said it was "bordering on the ridiculous."

And Oracle's Michael Jacobs has begun his opening statement.

Update 7: And mirror_slap has his final report on that, taking us to the end of the day:

Jury is polled. All answer the the verdict as read, is correct.

Judge: Special jury form will be made of record. [To jurors: Question 1b. is withdrawn from you as your purview. Back to the mode where you cannot talk with each other as you hear the evidence. No doing of any homework, no looking at news reports. Your job is to sit back, make the lawyers do all the work. I will tell you at the end of the patent phase what the law will be.]

Judge: I'm going to give you a few minutes, let the lawyers set up. We will go immediately to the patent phase of the case.

11:20 [break]

[jury exits]

Google moves for a mistrial on question 1. Basis cited... given the way the case was presented, you cannot get a partial verdict on one.

Judge: Make a formal motion in writing.

Google: Will get that in tomorrow.

Judge think about whether this simplifies phase 3. Only rangeCheck is for statutory damages.

Oracle: [ Boies] [something about asking for "infringer's profits"]

Judge: I thought that you were only going to be seeking statutory damages?

Judge: Note from jury to Dawn- We need more notebooks for phase 2.

Oracle: Separate damage calculation.

Judge: Do you want all their profits?

Oracle: No, Your Honor.

Judge: This borders on the ridiculous. Now you are changing your tune (adding to the agreed-upon statutory damages). Based on 9 lines of copying out of 15 million? That would ge a big, big stretch.

Oracle: If we were, as a matter of law, able to seek disgorgement on question 1.

Google mistrial briefing tomorrow...

Judge: Zero finding of liability so far. We will use the same briefing schedule. Brief tomorrow, responses by Thursday.

Phase 2 opens

Jury is seated.

Judge: [to jury] Patents. You will hear in a moment what patents are. Authorized by Congress in the Constitution. Gives exclusive right to the holder of the patent to make, use, or sell, the apparatus described in the claim. [Short video from the Federal Judicial Center in Washington, DC.] 2 handouts distributed. One is referenced in the video, so it would be useful to have. Now, has handed out a color-coded item, to be explained later. "An introduction to the patent system."

[video plays]

New, useful, not obvious to one of usual skill in the area.

Field of search.

References (prior art).

Specification abstract, background, drawings, detailed description of embodiment.

Claims.

Prosecution of a patent.

[ noon. playback ended. ]

Judge: Red underlinings are items in dispute. Non-underlined are conceded. All 4 limitations have to be proven to show infringement.

Judge: We will get through opening statements for the plaintiff. Remember what I said about what lawyers say is not evidence.

Opening Statement by Oracle's Michael A. Jacobs:

Oracle: [Mr. Jacobs] Spending a minute on the difference between patents and copyrights. Whether the claims of the two patents that we've said that Google infringes are in the Android phones. "I think that you will be pleased to know that Fair Use is not an issue in a patent case." [smiles from some jurors].

Android uses Dalvik VM.

Java Platform Components: Java app source code  gets compiled to Java bytecode by Java compiler; Java bytecode is loaded into JVM; JVM runs on a computing device.

Compare with Android Platform Components: Java App source code gets compiled by a java compiler. "Go to the Oracle website and download a Java compiler"

[Nobody else in the world makes Java compilers?]

dx tool is bolted onto to bottom of the Java compiler. The dx tool converts Java bytecode to "dexcode." Load onto Dalvik VM. Dexopt (optimization), and bytecode interpreter.

Virtual machines slow things down. We want our phones to turn on instantly. We don't want to wait. Talks about speed slowing down when having to speak through an interpreter. Said that if an interpreter was writing down things, it would take more paper (memory).

When Google developers were trying to get to market (against Microsoft), Google faced a technical challenge. Exhibit TX 23. "If the device is not fast and stable we FAIL". Email from Brian Swetland to Andy McFadden and others Aug 16, 2006.

Exhibit 4015... 104 patent, 520 patent, developed by Java developers back in the 1990's. Solved the same problems, speed and memory utilization.

Google's [alleged] infringement of the '104 patent. James Gosling, inventor, "Method and apparatus for resolving data references in generated code." This is a re-issue patent . You only have infringement to consider. Google's defence is, "We don't infringe".

The meaning of "Symbolic reference".

Evidence of infringement: Google programmers stated in Android that Android resolves "Symbolic references":
/* Link ( prepare and resolve ) Verification is deferred until later
* this converst symbolic references into pointers

Exhibit 816, Google I/O 2008 "Dalvik VM Internals" presentation by Dan Borenstein, Oracle's  "Android Relies on Symbolic Reference to Run Faster" opening argument slide.

Benchmark tests prove Android runs faster because of the '104 patent. Oracle will prove this, using in-house and Stanford experts. Standard industry ways for determining performance.

Exhibit 426, Eric Schmidt, "Speed matters."

'520 patent... has been re-examined. Exhibit 4011. Initialization of static arrays by simulating execution and then creating an efficient method. Needed because the Java bytecode doesn't implement the array initialization well; it's inefficient. [Uses example of shopping for groceries.]

Dispute is on "simulating execution". Google says that they parse, not simulating.

Public class simulator, Exhibit 47.16, shows "simulates execution" in the comments. Additional layer of proof required of Oracle: Google's knowledge of the patents. We are suing not only Google for their infringement, but also induced infringement. We have to show that Google was willfully blind to Oracle's patents. Brings up book published by Tim Lindholm, mentions the predecessor of the '104 patent, the '685 patent.

Google worried about its Java patent infringement. July 27, 2011 deposition of Andy Rubin. 2007, Google was aware that Sun had patents.

Did Google ever investigate Sun's patent portfolio? question to Andy Rubin.

Google induces patent infringement by phone makers.

Cleanroom is no defense to patent claims.

Google has no excuses. doing all of this without a license. They knew they needed a license.

Judge: Going to end early today [12:45]

No issues for the court.

[ adjourn ]

[ Lots of smiles from Google. Mr. Van Nest laughs out loud a few times. Things are rather glum at the Oracle table. ]

Update 8: Oracle, according to James Niccolai, has issued this statement now:

"The overwhelming evidence demonstrated that Google knew it needed a license and that its unauthorized fork of Java in Android shattered Java's central write once run anywhere principle," it said.
That's exactly what the jury did not say, actually. But this is Oracle. What the jury said yes to in question 4 was this:
A. Has Google proven that Sun and/or Oracle engaged in conduct Sun and/or Oracle knew or should have known would reasonably lead Google to believe that it would not need a license to use the structure, sequence, and organization of the copyrighted compilable code?
And the jury said Yes, Google had proven that. That is precisely the opposite of Oracle's statement.

Here is an interview by Bloomberg/BusinessWeek showing graphs of the stock market reacting to the news, downward for Oracle, and shooting up for Google. They grok what this decision means. What follows is an interesting interview with Pat Walravens of JMP Securities, who is also an attorney, who talks about the verdict, and whose overall assessment is that this is a difficult case for Oracle overall, including the patent claims.

Update 9: I thought you'd find it interesting to learn that in the later redo of the Oracle v. SAP litigation, where David Boies is also representing Oracle, something very similar was tried regarding infringer's profits. Here the judge called it bordering on the ridiculous. In the SAP case, here how the judge ruled, in the Final Pretrial Order [PDF], on Oracle's various motions in limine:

5. Plaintiff’s Motion in Limine No. 5 to exclude testimony by SAP’s expert Stephen Clarke regarding a calculation of infringer’s profits that includes a deduction of expenses from defendants’ revenues is DENIED. Plaintiff argues that because the infringement was willful, infringer’s profits should be equal to gross revenues, and that defendants should not be permitted to offset any of their gross revenues by subtracting expenses. However, the court finds no support for this proposition.

The language of 17 U.S.C. § 504(b) does not support a rule that overhead expenses cannot be deducted from gross revenues to arrive at profits where the infringement was deliberate or willful. Section 504(b) provides that “[i]n establishing the infringer’s profits, the copyright owner is required to present proof only of the infringer’s gross revenue, and the infringer is required to prove his or her deductible expenses and the elements of profit attributable to factors other than the copyrighted work.” There is no mention of willful infringement in § 504(b) – only in § 504(c) – which relates to statutory damages. The language of § 504(c) shows that where Congress intended to punish willful infringement by authorizing different remedies depending on the defendant’s culpability, it clearly knew how to do so. Section 504(b) makes no distinction between willful and innocent infringers. In addition, while the Ninth Circuit’s Model Instruction 17.27 may be considered a guide, the Ninth Circuit does not adopt the Model Instructions as authoritative statements of the law. Dang v. Cross 422 F.3d 800, 805 (9th Cir. 2005). Even less should a “Comment” to a Model Instruction be considered an authoritative statement of the law. Moreover, Model Instruction 17.27 is clearly labeled, “Copyright – Damages - Willful Infringement” under 17 U.S.C. § 504(c)(2), which relates to statutory damages which are not sought by plaintiff here. It is Model Instruction 17.24, “Copyright – Damages – Defendant’s Profits” which relates to the measure of damages under 17 U.S.C. § 504(b) which are sought by plaintiff here. Tellingly, there is no Model Instruction that sets forth the standard plaintiff urges the court to adopt. Nor does the Ninth Circuit’s decision in Kamar Int’l v. Russ Berrie and Co., 752 F.2d 13 1326, 1331-31 (9th Cir. 1984), which is cited in the Comment to Model Instruction 17.27, clearly support the statement in the Comment that defendants’ expenses are generally “denied where the defendant’s infringement is willful or deliberate,” since the court in Kamar had previously determined that the defendant was not a willful infringer. To the extent that the parties dispute which categories of expenses can be deducted (assuming defendants meet their burden of proof), that is a matter for the court, not the jury, to decide.

6. Defendants’ Motion in Limine No. 1 to exclude evidence and argument regarding new claims relating to lost profits and infringer’s profits is GRANTED in part and DENIED in part. The motion to preclude plaintiffs from reversing their approach to deductible expenses in connection with the infringer’s profits claim is GRANTED, for the reasons set forth above with regard to plaintiff’s Motion in Limine No. 5. The motion to exclude testimony and other evidence regarding the calculation of ongoing support/maintenance revenues (after 2008) up to the time of trial, and regarding the increased profit margin percentage applicable to the added revenue, is DENIED. The court is not persuaded that judicial estoppel applies under these facts; and finds further that the supplemental or updated report of Oracle’s expert Paul Meyer is not untimely given that the bulk of the claimed damages were not incurred until after the discovery deadlines preceding the first trial. Thus, it would be unfair to disallow this evidence, subject to plaintiff’s establishing that the claimed damages flow from the pre-2008 infringement. In addition, however, both sides shall make their experts available before trial for further short depositions on this issue and there shall be full disclosure of the claimed damages and any defense thereto.

7. Defendants’ Motion in Limine No. 2 to exclude evidence previously offered solely to support excluded damages theories is DENIED in part and DEFERRED in part. The question whether plaintiff may offer evidence to support the theory of hypothetical license damages (including up-sell and cross-sell and saved development costs) has been resolved by the court, most recently in the ruling on plaintiff’s motion for clarification. Defendants have provided examples of evidence relating to “license factors,” “risk acceptance,” “expected financial gains,” and the “risk to plaintiffs’ investment.” However, because defendants have not sufficiently identified the particular items of evidence they seek to have excluded, and because plaintiff argues that some of the evidence may well be relevant to causation, the court is unable to rule on this part of the motion, and defers further consideration until the further conference to be held on June 8, 2012.

8. Defendants’ Motion in Limine No. 3 to exclude evidence and argument regarding TomorrowNow’s criminal conviction is GRANTED. Any evidence of willfulness that would be reflected by the guilty plea or conviction is irrelevant to any issue being tried in the case in light of defendants’ stipulation to liability. In addition, this evidence may not be used for impeachment purposes pursuant to Federal Rule of Evidence 609 to impeach the testimony of defendants’ witnesses, as it was the corporation TomorrowNow that pled guilty, not any of the individual executives employed by defendants SAP AG, SAP America, Inc., or TomorrowNow. The corporate conviction has no bearing on the credibility of any individual witness who may be employed by a defendant and no individual witness has been him or herself convicted, such that their own conviction might be employed for impeachment. Moreover, unlike the situation in Hickson Corp. v. Norfolk S. Ry. Co., 227 F.Supp. 2d 903, 907 (E.D. Tenn. 2002), liability in this case has been conceded, and is therefore not an issue to be decided by the jury.

9. Defendants’ Motion in Limine No. 4 to prohibit plaintiff from referring during the trial to “theft” or “stealing” of software by defendants is GRANTED. Defendants have stipulated to liability for copyright infringement, and the jury will be so advised. Balancing the potential for prejudice and the value to plaintiff of characterizing defendants’ conduct as theft, the court concludes that the use of the words “theft” or “stealing” would be inflammatory and would likely be unduly prejudicial to defendants, and is furthermore unnecessary given defendants’ stipulation to liability. Moreover, the use of words associated with criminal conduct could potentially confuse the jury about the nature of this case and what they will be asked to find. Plaintiff may argue that defendants “copied,” “took,” or “used” the software “without authorization,” but may not characterize defendants’ conduct as “theft” or “stealing.”

Isn't that interesting, that David Boies is using the same extreme strategy in both cases, and got knocked down by two judges on it so far. That order is dated May 29, 2012, and the judge presiding is the Hon. Phyllis J. Hamilton.

Update 10: All the trial exhibits are now available as PDFs here. Some are also done as text. Look for the date nearest the day, as they are listed by the date they were entered, which could be a day or so after the date of their use in the courtroom.


  


From the Courtroom: Oracle v. Google, Day 1 of Patent Phase ~pj - Updated 10Xs- Partial Verdict; Oracle Wins Nothing That Matter | 697 comments | Create New Account
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Corrections here
Authored by: feldegast on Monday, May 07 2012 @ 01:13 PM EDT
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 | # ]

Tweets from the courtroom
Authored by: feldegast on Monday, May 07 2012 @ 01:15 PM EDT
https://twitter.com/#!/Feldegast

Malathi Nayak @MalathiNayak
Alsup is back in his seat. He says one of the jurors has had conversations outside the jury regarding the trial over the weekend.

---
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 Monday, May 07 2012 @ 01:15 PM EDT
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 | # ]

Off Topic Here
Authored by: SilverWave on Monday, May 07 2012 @ 01:16 PM EDT
:-)

---
RMS: The 4 Freedoms
0 run the program for any purpose
1 study the source code and change it
2 make copies and distribute them
3 publish modified versions

[ Reply to This | # ]

Comes Stuff Here
Authored by: SilverWave on Monday, May 07 2012 @ 01:17 PM EDT
:-D

---
RMS: The 4 Freedoms
0 run the program for any purpose
1 study the source code and change it
2 make copies and distribute them
3 publish modified versions

[ Reply to This | # ]

Why has the jury verdict not yet come in?
Authored by: jkrise on Monday, May 07 2012 @ 01:20 PM EDT
Is the patent phase which has apparently started, happening in front of the
jury, or not?

[ Reply to This | # ]

Israeli workweek
Authored by: Anonymous on Monday, May 07 2012 @ 01:41 PM EDT
Judge: [Gives Oracle a little extra time... had said by this Thursday, but gives them the weekend.]
Note that the Israeli workweek is usually Sunday through Thursday.

[ Reply to This | # ]

  • Israeli workweek - Authored by: shachar on Monday, May 07 2012 @ 02:37 PM EDT
  • Israeli workweek - Authored by: Anonymous on Monday, May 07 2012 @ 03:20 PM EDT
    • Israeli workweek - Authored by: Anonymous on Monday, May 07 2012 @ 05:56 PM EDT
      • Israeli workweek - Authored by: Anonymous on Monday, May 07 2012 @ 06:16 PM EDT
        • Israeli workweek - Authored by: Anonymous on Monday, May 07 2012 @ 09:52 PM EDT
        • Israeli workweek - Authored by: Anonymous on Tuesday, May 08 2012 @ 07:03 PM EDT
      • Israeli workweek - Authored by: shachar on Monday, May 07 2012 @ 09:29 PM EDT
        • Israeli? - Authored by: Anonymous on Tuesday, May 08 2012 @ 05:17 AM EDT
          • Israeli? - Authored by: Anonymous on Tuesday, May 08 2012 @ 10:43 AM EDT
            • Israeli? - Authored by: Anonymous on Tuesday, May 08 2012 @ 11:14 AM EDT
              • Israeli? - Authored by: Anonymous on Tuesday, May 08 2012 @ 11:46 AM EDT
                • Israeli? - Authored by: Anonymous on Tuesday, May 08 2012 @ 12:00 PM EDT
          • Israeli? - Authored by: Anonymous on Tuesday, May 08 2012 @ 11:34 AM EDT
Why is she talking with her husband?
Authored by: rsteinmetz70112 on Monday, May 07 2012 @ 02:12 PM EDT
I suppose she could have ignored him :-)

But I think it would be difficult to spend the weekend with someone and not talk
about what you had been doing all week.

I may be wrong but talking about your courtroom experience without talking about
the case would seem to be reasonable.

---
Rsteinmetz - IANAL therefore my opinions are illegal.

"I could be wrong now, but I don't think so."
Randy Newman - The Title Theme from Monk

[ Reply to This | # ]

Goolge Happy
Authored by: MDT on Monday, May 07 2012 @ 02:24 PM EDT
I'm sure Google is happy with the decision the Jury reached.

They had to find guilty on 1A, given the Judge told them to assume the SSO was
copyrightable.

They only found them guilty of Timsort on anything else, and that was a given.
So basically Oracle struck out on everything (including foreclosing fair use
defense, since the Jury didn't decide on it either way).

Now Alsup will have to bite the bullet and go on record about copyrightability
of SSO of APIs.

---
MDT

[ Reply to This | # ]

Google now asking for a mistrial
Authored by: Anonymous on Monday, May 07 2012 @ 02:29 PM EDT
The biased jury instructions now come home to roost.

The jury felt compelled to find for Oracle, but they couldn't agree on Google's
fair use defense.

Although it would be wasteful, I think a mistrial is the best possible outcome
here. This jury is completely tainted because Judge Alsup didn't decide the
copyrightability question before trial. If he proceeds with the rest of the
trial, its going to be a disaster either way.

[ Reply to This | # ]

From the Courtroom: Oracle v. Google, Day 1 of Patent Phase ~pj - Updated 4Xs
Authored by: Anonymous on Monday, May 07 2012 @ 02:35 PM EDT
Question 1A is irrelevant given the jury instructions. It was practically a
directed verdict of fact. But a determination based on Law by the judge will be
critical.

Question 4A is more important than 1A.

[ Reply to This | # ]

there's nothing except one line of statutory damages
Authored by: SilverWave on Monday, May 07 2012 @ 02:40 PM EDT
Rachel King ‏ @ZDNetRachel

Judge: Unless court can give verdict on 1B in favor of Oracle, there's nothing
except one line of statutory damages

---
RMS: The 4 Freedoms
0 run the program for any purpose
1 study the source code and change it
2 make copies and distribute them
3 publish modified versions

[ Reply to This | # ]

timsort?
Authored by: tiger99 on Monday, May 07 2012 @ 02:40 PM EDT
So what is the likely amount of damages for using a few lines of code, now
removed? Less than the cost to Oracle of that part of the trial, perhaps?

[ Reply to This | # ]

Huge kudus to mirror_slap
Authored by: shachar on Monday, May 07 2012 @ 02:44 PM EDT
Looking at the Jury's verdict, they found more or less along the lines of what I
thought a reasonable jury would based on the questions as asked. This, to me,
says that mirror_slap made an amazing job of reflecting to us what the jury was
seeing at the courtroom.

So, huge kudus.

Shachar

[ Reply to This | # ]

Did someone put LSD in my coffee? I'm in a federal courtroom, right?
Authored by: SilverWave on Monday, May 07 2012 @ 02:45 PM EDT
Caleb Garling ‏ @CalebGarling

"Let's take a closer look at the word 'invention.'" Did someone put
LSD in my coffee? I'm in a federal courtroom, right?

---
RMS: The 4 Freedoms
0 run the program for any purpose
1 study the source code and change it
2 make copies and distribute them
3 publish modified versions

[ Reply to This | # ]

I'm Confused
Authored by: rsteinmetz70112 on Monday, May 07 2012 @ 02:48 PM EDT
It sounds like Google is pushing for a mistrial, but if the Judge finds for
Google on SSO, then all questions are answered and off we go for an appeal. Only
needing a retrial if the Judge is overturned on appeal.

Since the SSO issue is so controversial might the judge adopt the reasoning of
the EU court and kick it upstairs for a legal decision?

---
Rsteinmetz - IANAL therefore my opinions are illegal.

"I could be wrong now, but I don't think so."
Randy Newman - The Title Theme from Monk

[ Reply to This | # ]

From the Courtroom: Oracle v. Google, Day 1 of Patent Phase ~pj - Updated 4Xs- Partial Verdict
Authored by: Anonymous on Monday, May 07 2012 @ 02:48 PM EDT
Apparently said jury didn't notice that the person she was talking to could have
been referring to copyrights and not patents. Seems to me like she might not
have been able to tell the difference between copyrights and patents.
Additionally she might not able to separate outside influence from her decision
as juror. Either way, this suggests to me that the jury in this trial is already
contaminated with invalid information.

[ Reply to This | # ]

Question 4 Yes uhh No ...YesNo
Authored by: Anonymous on Monday, May 07 2012 @ 02:53 PM EDT
a: Yes - So Google proved that Sun's conduct led them to
believe they would not reasonably need a licence but..
b: No - They did not rely on this info?


I don't understand.

It seems to me that a:No b:Yes would be a more reasonable
conclusion. BTW - thanks for this sight. It is awesome.

[ Reply to This | # ]

4B is a (minor) failure for Google
Authored by: Anonymous on Monday, May 07 2012 @ 02:55 PM EDT
It seems to me (IAMAL, of course) as if the verdict on 4B indicates that Google
could have done better there. Surely, they could have asked one of their top
level people whether they were aware of Jonathon Schwartz's posting and whether
it affected their decision to proceed. "Why no, the idea that they might
claim a copyright violation on the APIs was so far-fetched that we were not
worried about proceeding on that ground, Jonathan's posting simply confirmed
that he lived in the same universe as us."

Perhaps they couldn't afford to spend the time for this minor point.

John Macdonald

[ Reply to This | # ]

Good verdict for Google
Authored by: Anonymous on Monday, May 07 2012 @ 02:55 PM EDT
This is actually a good verdict for Google. The nine lines of code were copied.
Doh... That they found no copying on the docs etc. is good.

On 1B, it is no wonder the jury hung. They were told SSO was copyright, and the
answer to 1A was obviously yes. But any reasonable person can see that if it is
copyrightable, then what Google did must be allowed under fair use. Otherwise
innovation would grind to a halt. But the instructions on fair use rule out
fair use - given the instructions they should have returned a no on fair use.

At least this provides some reassurance that common people are not so dumb.

Regards,
-Jeremy

[ Reply to This | # ]

David Boies stated that Oracle should be owed a portion of Android profits given the rangeCheck
Authored by: SilverWave on Monday, May 07 2012 @ 03:51 PM EDT
On the issue of damages, Oracle counsel David Boies stated that Oracle should be
owed a portion of Android profits given the rangeCheck infringement, a pivot
from earlier statements that it was expecting just statutory damages for this
portion of its accusations. Judge Alsup disregarded this almost immediately,
stating that there should be just one line of statutory damages going to the
jury, which would result in a much smaller number than Oracle had hoped to
achieve with its legal action.

---
RMS: The 4 Freedoms
0 run the program for any purpose
1 study the source code and change it
2 make copies and distribute them
3 publish modified versions

[ Reply to This | # ]

I see some handshaking going on over on Google side.
Authored by: SilverWave on Monday, May 07 2012 @ 04:04 PM EDT
Rachel King ‏ @ZDNetRachel

I see some handshaking going on over on Google side. Technically the shot at a
mistrial is better than nothing at this point, right?

---
RMS: The 4 Freedoms
0 run the program for any purpose
1 study the source code and change it
2 make copies and distribute them
3 publish modified versions

[ Reply to This | # ]

SO FAR all Google is liable for... damages report says equals about the price of a ham sandwich
Authored by: SilverWave on Monday, May 07 2012 @ 04:06 PM EDT
Caleb Garling ‏ @CalebGarling

So...SO FAR all Google is liable for is infringing nine lines of code which the
damages report says equals about the price of a ham sandwich

---
RMS: The 4 Freedoms
0 run the program for any purpose
1 study the source code and change it
2 make copies and distribute them
3 publish modified versions

[ Reply to This | # ]

David 'bordering on the ridiculous' Boies
Authored by: BJ on Monday, May 07 2012 @ 04:11 PM EDT
Ah -- how sweet to be able to grinningly state something like this.
Regards to judge Alsup.

bjd

[ Reply to This | # ]

About Compatibility and Fragmentation of Java of Patent Phase ~pj - Updated 4Xs- Partial Verdict
Authored by: Anonymous on Monday, May 07 2012 @ 04:16 PM EDT
On Saturday, May 05 2012 PJ say:
"this made up thing called SSO"
I did a search back in the filling and the fist time i could find this acronym used was on April 13 in a answer to the Judge:
Google's Proposed Findings, [#898], similarly headless and footless:
2. API specifications, by design, describe the structure, selection and organization (“SSO”)
On April 16 there was talk of a Glossary list:
Third:
JA asks for glossary of the top-40 terms that will be used by the jury.
O produces the list
JA: Was this list agreed to by both parties?
O: Yes, your Honor.
JA: Thank you for doing that.
On april 17 again:
Handouts are given to the jury. One is a timeline and the other is a glossary of terms. Both have been stipulated. Each is a single page.
On April 27 there are filling from Oracle; one of them is Exhibit 2 (glossary) (PDF)
Case3:10-cv-03561-WHA Document1002-2 Filed04/28/12

But checking this Exhibit; there is no SSO mentioned
Is this not the same list as handed out to the jury?

/Arthur

[ Reply to This | # ]

Partway through the Oracle Patent opening... "this converts symbolic references into pointers"
Authored by: SilverWave on Monday, May 07 2012 @ 04:26 PM EDT
They are to teach the jury about "this converts symbolic references into
pointers"...

Really?

---
RMS: The 4 Freedoms
0 run the program for any purpose
1 study the source code and change it
2 make copies and distribute them
3 publish modified versions

[ Reply to This | # ]

This is like watching Punch and Judy argue about who stole the sausages
Authored by: Anonymous on Monday, May 07 2012 @ 04:37 PM EDT
I mean, really, resolving symbolic references?
and 'static initialization of arrays'?

Symbolic references is dynamic linking 101.

I know guys who used to do this stuff on a Commodore 64 with
linked-lists/indirect references and bottom up/top down memory allocation.
(disclaimer I have not and do not care to read the patents, they do not apply to
me in my jurisdiction [..yet])

What planet do these people come from?

[ Reply to This | # ]

Jonathan's Testimony
Authored by: Anonymous on Monday, May 07 2012 @ 04:37 PM EDT
Can someone explain to me why the Judge said he would have approved a strike
to part of Jonathan's testimony? What did he mean by the "spring gun"
comment?

Thanks!

[ Reply to This | # ]

Stupid NYT
Authored by: nola on Monday, May 07 2012 @ 04:58 PM EDT
says that the jury already decided on the patent question

Mixed Decision in Google-Oracle Patent Case

[ Reply to This | # ]

  • bad link - Authored by: Anonymous on Monday, May 07 2012 @ 05:10 PM EDT
    • bad link - fixed - Authored by: Anonymous on Monday, May 07 2012 @ 06:02 PM EDT
  • Stupid NYT - Authored by: nola on Monday, May 07 2012 @ 06:09 PM EDT
  • Stupid NYT - Authored by: IANALitj on Tuesday, May 08 2012 @ 02:23 AM EDT
Article at the BBC.
Authored by: Anonymous on Monday, May 07 2012 @ 05:18 PM EDT
Here is a Link

[ Reply to This | # ]

"infringer's profits" ???
Authored by: SpaceLifeForm on Monday, May 07 2012 @ 05:27 PM EDT
On 9 lines of de minimis code?

That is not even fishing at the bottom of the barrel,
that is looking for old rusty fishhooks so you can
say you can say you went on a fishing trip.


---

You are being MICROattacked, from various angles, in a SOFT manner.

[ Reply to This | # ]

From the Courtroom: Oracle v. Google, Day 1 of Patent Phase ~pj - Updated 7Xs- Partial Verdict
Authored by: xtifr on Monday, May 07 2012 @ 05:30 PM EDT
Well, my skills as a prophet have been completely discredited. I guessed that
Google would win on the APIs and lose on the documentation. (Which would have
been a hollow victory for Oracle, since the documentation isn't included with
Android itself, leaving them no shot at per-device Android license fees.)

Of course, Google can still win on the APIs if SSO is thrown out, but that
leaves me batting 50:50, best case.

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

[ Reply to This | # ]

"infringer's profits" ???
Authored by: SpaceLifeForm on Monday, May 07 2012 @ 05:42 PM EDT
On 9 lines of de minimis code?

That is not even fishing at the bottom of the barrel,
that is looking for old rusty fishhooks so you can
say you went on a fishing trip.


---

You are being MICROattacked, from various angles, in a SOFT manner.

[ Reply to This | # ]

The jury has decided Google is guilty… but was it really qualified to do so?
Authored by: SilverWave on Monday, May 07 2012 @ 06:03 PM EDT
The jury has decided Google is guilty… but was it really qualified to do so?

---
RMS: The 4 Freedoms
0 run the program for any purpose
1 study the source code and change it
2 make copies and distribute them
3 publish modified versions

[ Reply to This | # ]

Woeful Press Coverage Thread
Authored by: calris74 on Monday, May 07 2012 @ 06:03 PM EDT
The Register: Partial victory for Oracle in Java case
Although the former Sun CEO Jonathan Schwartz testified in Google's favor, saying the company never had a problem with the Chocolate Factory's implementation of Java, the jury seems unswayed
Um, I think the YES for 4a.
Has Google proven that Sun and/or Oracle engaged in conduct Sun and/or Oracle knew or should have known would reasonably lead Google to believe that it would not need a license to use the structure, sequence, and organization of the copyrighted compilable code?
Tells me the jury believed Schwartz's testomony

[ Reply to This | # ]

Can the judge decide fair use?
Authored by: Anonymous on Monday, May 07 2012 @ 06:05 PM EDT
Is the judge allowed to decide that something is fair use? Or can he only
decide that APIs should not be copyrightable, which IMHO, is the correct answer
anyhow?

Also, after that copyright registration kerfluffle, do we know for sure that
statutory damages are available here? I'm assuming yes, but I have to wonder.

[ Reply to This | # ]

From the Courtroom: Oracle v. Google, Day 1 of Patent Phase ~pj - Updated 7Xs- Partial Verdict; Oracle Wins Nothing That Matters
Authored by: wvhillbilly on Monday, May 07 2012 @ 06:25 PM EDT
IMO: Oracle = 2nd SCO. At least this judge isn't taking seven years plus to
reach a verdict.

---
"It is written." always trumps, "Um, ah, well, I thought..."

[ Reply to This | # ]

I have new investment strategy
Authored by: Anonymous on Monday, May 07 2012 @ 06:37 PM EDT
When David Boies starts representing a firm, I go short on
them.

[ Reply to This | # ]

Nobody else in the world makes Java compilers?
Authored by: Anonymous on Monday, May 07 2012 @ 06:38 PM EDT

IMHO, the jikes compiler is a better Java compiler than javac. It's faster, it shows the line number of an error better, it can suggest a legitimate identifier that's close to one you've misspelled, and it's far less susceptible to cascade.

Unfortunately, despite being open source, it hasn't been updated for the language changes introduced by Java 1.5, 1.6 or 1.7. I still use it for almost all my Java source files for which Java 1.4 is sufficient. (It supports asserts but not enums, generics, annotations, etc.)

[ Reply to This | # ]

Google Is Probably the Big Winner in First Phase of Oracle Trial By Ginny LaRoe
Authored by: SilverWave on Monday, May 07 2012 @ 06:59 PM EDT
Google Is Probably the Big Winner in First Phase of Oracle Trial By Ginny LaRoe

---
RMS: The 4 Freedoms
0 run the program for any purpose
1 study the source code and change it
2 make copies and distribute them
3 publish modified versions

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Google have won nothing yet, and I want to see a big Pink Highlighter pen
Authored by: Anonymous on Monday, May 07 2012 @ 07:20 PM EDT
PR/FUD/Opinion/Jury who cares! Nothing.

Bottom line Judge Alsup decides and nothing is done till he delivers his view:
At the moment..

"zero finding of copyright liability" *so* far*.

So Far!!

Yes sure, I hope that Judge Alsup aligns himself with the rest of the universe,
but there are 4 rain forests worth of briefings to get through and to date a
history of alignment with plaintiff point of view.

And Yes, if Google don't get the win, then Van Nest is going to get a mistrial,
but that just means it all counts for nothing and the whole show starts all over
again.

Here's the thing, before we go there, and heck why not before we even got to
phase 2 or 3, why does somebody not force someone to sit down with a box of
Highlighters, one Pink, one Yellow, one Green.

PINK: This is what they copied (My Stuff)
YELLOW: This is where they copied it to (Their Stuff)
GREEN: This is not protected Stuff

Applies to patents and to copyright.

Isn't that what evidence is supposed to be about?

For all the demands to 'show me the tangible expression', let's be done with
loose 'it's in here' answers.

Circle it in NEON Blue Highlighting pen,.

So far in the copyright phase I have seen no actual evidence, I've even annoyed
people on GL for actually supporting the idea that SSO might even actually be
real and cognizable (if you squint hard enough) in docs and code.

But come on, when is someone actually going to point to it and go "Right
THERE! See it RED, YELLOW, GREEN?" actual distinguishable evidence.

Is that not the whole point of finding of fact?

It's about time the lawyers/judge cut the cr........

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That "Android shattered Java's central write once run anywhere principle" makes me sick
Authored by: Anonymous on Monday, May 07 2012 @ 07:57 PM EDT
Android actually delivered that glorious "write once run anywhere" to
the mobile space.

You can program in normal sane Java and use almost anything written for JavaSE
with no problems (of course within bounds of reasonable).

On the other hand, Sun's own JavaME was anything but "normal" Java.
Literally nothing could be reused, I needed to rewrite everything from scratch.


And I am not talking about fancy things, even HashMap was not there. "Write
once run anywhere" my a....

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Get your anti-FUD straight
Authored by: Guil Rarey on Monday, May 07 2012 @ 08:50 PM EDT
The jury DID NOT reach a conclusion as to Google *improperly* using Oracle /
Sun's code.

To Google is liable IF AND ONLY IF BOTH 1)They used Sun/Oracle's code AND 2)They
did not have a valid defense / reason for doing so (fair use). The jury
returned true on 1) and NULL on 2) and as a result the entire return is NULL.

Google used the Java API. But you knew that already. The jury reached no
conclusion that they were liable to Oracle / Sun as a result.

---
If the only way you can value something is with money, you have no idea what
it's worth. If you try to make money by making money, you won't. You might con
so

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I wonder how the share market will react
Authored by: Anonymous on Monday, May 07 2012 @ 09:26 PM EDT
After the SCO saga I formed the opinion that the average share market investor
must have the approximate intelligence of a small rodent. After every setback
SCO's share price would bizarrely rise. I would be interesting to see whether
Oracle/Google share owners are collectively as stupid.

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From the Courtroom: Oracle v. Google, Day 1 of Patent Phase ~pj - Updated 7Xs- Partial Verdict; Oracle Wins Nothing That Matters
Authored by: Anonymous on Monday, May 07 2012 @ 09:48 PM EDT
If the jury doesn't back you - tell a lie
Lest the press not there attack you - tell a lie
If you whole case is appalling
Just ignore the caterwaulling
There is nothing you can't facedown - if you lie

Never mind the jury's verdict - sell a lie
There are some who won't have heard it - so you lie
And your stock price needs inflating
More than simple truth needs stating
So ignore the court's decisions, tell a lie

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Given 'Yes' to 4a, how could Google NOT have a valid Fair Use defence
Authored by: calris74 on Monday, May 07 2012 @ 09:51 PM EDT
Hmm, actually I re-read this and realised just how stupid the verdict is....

On the one hand, the jury found that Sun/Oracle behaved in a manner in which Google would reasonably believe that they did not need an license (covering SSO)

And then they say they couldn't come to a conclusion Re: Fair Use

And what on earth is the go with 4b - Sun behaved in a way that could lead Google to assume they did not need a license, but Google did not rely on this as a basis for not obtaining a license? Sounds like re-trial fodder to me:
OK, so we know a jury will believe Sun's actions provided 'tacit' approval for unlicensed re-implementation, now we just need to prove that was the basis of our decision to not get a license

Imagine for a minute if someone leaves the keys in a car with a sign that says "Free to Drive (but please, fill-er-up when your finished)", advertises the location of the car in the local paper and gives you high-fives after you drive it the first time.

Now, imagine that the owner removes the sign (but leaves the keys in the car) and you take it for a second drive (and the owner watches without trying to stop you). This time, the owner gets you arrested and charged with theft...

And the jury decides that:
  • What you did fits the legal definition of theft
  • But the owners previous actions (and leaving the keys in the car) would give you a reasonable impression that you could still drive the car
  • They couldn't decide if you're guilty of theft or not
Weird!

By my reckoning, how could Google NOT have a valid fair use defence

For another (Australian) classic case of a 'Fair Use' equivalent, take a look at The Chaser APEC pranks
It was decided that the police, failing to notice that the presented security badges were fake, had given "tacit" permission for the group to enter the restricted zone

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What the jury actually decided...
Authored by: Anonymous on Monday, May 07 2012 @ 11:13 PM EDT
So, it seems to me that almost everyone (both here and in the media in general) is being a little bit sloppy in commenting on what the jury actually decided, especially in regards to Q1, 3, and 4. Here is how I understand it:

Re: Q1

This question could have been worded more clearly. A one word change and one word deletion would have done it. It should have read:

"As to the compilable code for the 37 Java API packages in question taken as a group:

"Has Oracle proven that Google has copied the overall structure, sequence and organization of copyrighted works?"

This question refers to copying the structure, sequence, and organization (that is, non-literal copying) of the compilable code of the implementation of the classes in the 37 packages. The SSO of computer programs (that would be the compilable code) is protectable, that of an "API" is not (yet). The term API is a red herring here and should have been left out for the sake of clarity. That is was left in is probably grounds for appeal if there is no mistrial on this count.

Once copying has been established, then fair use can be considered. If there is no fair use (or other exception to copyright that covers the copying and is pleaded), then and only then is there infringement.

Also, I'm not sure how the extent of the protected work is determined, but it appears to me that even if the jury had rendered a verdict of copying and no fair use on Q1, the decision would be appealable on the proper extent of the work to be compared, especially in light of the issues with the registration.

Re: Q3

This question was also worded in a confusing manner - is the jury deciding de minimis? It looks like they are, but it isn't clear - I do believe that it's a matter of fact, though. Since it looks to me like the jury decided that 9 lines out of 900 in the file was not de minimis, I'm not sure if this verdict will stand. If Google moved for a ruling as a matter of law that no reasonable jury could have found the copying was anything other than de minimis it may well be overturned by the judge. I haven't checked the motions to see if Google did so move. The wording of this question may also be grounds for appeal (more likely by Google, should it need to or be so inclined).

Re: Q4

This question is an advisory verdict only. The judge is free to accept it or disregard it as it covers an equitable defence to infringement: that of estoppel. As I understand it, in order for there to be a finding of estoppel, two things must be proved: that Sun/Oracle's conduct led Google to believe that they did not need a licence, and that Google relied on this conduct in its decision not to take a licence. Both elements are essential, and both will be decided by the judge alone.

I'm not sure how the judge will rule on this, but he may also include in his verdict (which I think will be a finding of non-infringement as a matter of law) that even if there was infringement, Oracle would be estopped from asserting thier copyrights (whatever they are) against Google (or anyone else that relied on their actions implying that a licence wasn't necessary.

In other words, not much of anything was really decided by the jury, other than there was no violation of the copyright in the documentation. Most of the decisions on copyright infringement still rest with the judge, and will likely be determined after all phases of the trial have been completed.

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Worst case scenario
Authored by: Anonymous on Tuesday, May 08 2012 @ 01:07 AM EDT
Can someone clarify if the worst case scenario is feasible at
all? If so what is the impact?

That is IF judge Alsup holds APIs copyrightable and on top of
that dismisses Google's fair use claim as matter of law since
jury left that open?

Of course Google can appeal etc. etc., but is this a scenario
totally impossible?

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Bang on about the fashion
Authored by: Ian Al on Tuesday, May 08 2012 @ 01:43 AM EDT
Who cares if it was a classic black Chanel jacket, or even the red? It wouldn't
be one of the plaid jackets. I mean, gold buttons on a taupe plaid?

It would help if we knew the colour of the clasp bag and the style of the
shoes.

I see what she means. It's hard to compete against free. Expensive, too!

---
Regards
Ian Al
Software Patents: It's the disclosed functions in the patent, stupid!

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name.name.name.name
Authored by: Anonymous on Tuesday, May 08 2012 @ 02:57 AM EDT
A name, including non-alphabetic characters, may be just a
name to a computer.

import java.net.MalformedURLException;

#include "/usr/include/linux/pps.h"

std::string tmp=some_hex_tmp_name_with_dots();
std::cerr << "path : " << tmp << std::endl;

path : /tmp/af.be.cd.dc

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what happened to the entire works of the APIs and the lack of registration?
Authored by: Anonymous on Tuesday, May 08 2012 @ 03:20 AM EDT
IIRC this issue was not resolved, though there was a
whole works thing in the jury instructions for the docs.

Seems like Q1 was misleading as it didn't mention
whole works.

Also did Oracle ever prove that they registered
copyright on the whole works, let alone subsets?

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what happened to the entire works of the APIs and the lack of registration?
Authored by: Anonymous on Tuesday, May 08 2012 @ 03:21 AM EDT
IIRC this issue was not resolved, though there was a
whole works thing in the jury instructions for the docs.

Seems like Q1 was misleading as it didn't mention
whole works.

Also did Oracle ever prove that they registered
copyright on the whole works, let alone subsets?

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    Speculation on the jury verdict on question 3b
    Authored by: bugstomper on Tuesday, May 08 2012 @ 05:01 AM EDT
    Sorry if someone else has brought this up already - I have not yet read through all 387 comments posted as I type this.

    I was trying to make sense of the "No" verdict on question 3b

    Has Oracle proven that Google's conceded use of the following was infringing, the only issue being whether such use was de minimus: Source code in seven "Impl.java" files and one "ACL" file.
    How can the jury have decided that conceded copying of 100% of the files was not infringing? I can think of two ways to get to that conclusion. Does anyone have any other ideas?

    One, perhaps they noticed that Oracle showed the output of a decompiler matched up against Google's version, and decided that Oracle never showed that the source code itself was copied. As a techie, I consider it well settled that the object code of a compiled program is protected by the same copyrights that protect the original source code. It seems obvious to me that if I decompile a program that is protected by copyright I am producing an infringing derivative work. But Oracle seems not to have thought to make that clear to the jury, and Google certainly didn't correct their mistake, if that's what it was. The jury, based on just what they were told, may have decided that Oracle never proved that Google's decompiling of the object code was infringing use of the source code.

    Second possibility, the jury noticed that all of the Java Platform is freely available for anyone to download and use, even if it is not available for anyone to produce and distribute derivative works. Oracle did not prove that Google's conceded use of the test files involved anything other than perhaps using them for their own tests, maybe not even that, but in any case not copying and distributing them.

    Either of those ways of reaching the "No" verdict on 3b seems to me to indicate the jury putting real thought and consideration into the details of the case, and speaks well for them.

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    Long arm -- Day 1 of Patent Phase ~pj - Updated 7Xs- Pracle Wins Nothing That Matters
    Authored by: Anonymous on Tuesday, May 08 2012 @ 07:56 AM EDT
    Berger has Thursday to get here from Isreal!!!

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    From the Courtroom: Oracle v. Google, Day 1 of Patent Phase ~pj - Updated 7Xs- Partial Verdict; Oracle Wins Nothing That Matters
    Authored by: Anonymous on Tuesday, May 08 2012 @ 09:25 AM EDT
    What about gcj that is part of gcc?

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    Why the delay on judge ruling re API copyrightability?
    Authored by: Anonymous on Tuesday, May 08 2012 @ 10:55 AM EDT
    I've followed everything so far, and I understand the alleged reason for Alsup's
    peculiar instructions to the jury on the subject of copyrightability of APIs
    (peculiar from my perspective, as a techie). What I don't understand though is
    why the judge continues to delay his ruling on that issue, now that the jury has
    returned a verdict to the best of their abilities.

    In many ways, it is the judge who manufactured an impossible task for the jury,
    by not declaring whether APIs are copyrightable as a matter of law in advance of
    jury deliberations. And it is the two legal teams plus the judge who
    manufactured this entire "SSO" fiction around which so much of the
    discussion has revolved. It created a legal issue artificially where none
    existed before, and it gave the jury a hypothetical to consider which
    unavoidably harmed their ability to return a verdict based on matters of fact.

    That may be history now, but in delaying his ruling on the matter of law
    further, the judge seems to be turning an unfortunate legal strategy into
    something worse, a major cause for concern worldwide. Does anyone understand
    the basis for his delay?

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    Is there a good summary of the issues and strengths of argument of the patent phase?
    Authored by: Anonymous on Tuesday, May 08 2012 @ 11:03 AM EDT
    I have been following the copyright phase very closely, and
    think I've got a good overall grip of the issues.

    Possibly I'm missed it, but is there a good summary of the
    state of play, expected arguments, and relative strengths of
    case for the patent phase?

    I'm not sure I have a good grip on who is likely to prevail
    here.

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    Question: Court's Decision on Ability to Copyright SSO
    Authored by: sproggit on Tuesday, May 08 2012 @ 12:52 PM EDT
    In the jury instructions Judge Alsup gave clear direction that the jury were to
    assume that the structure, sequence and organisation of API materials (SSO)
    could be subject to copyright.

    From everything that I have read on this and other cases (to say nothing of the
    recent EU finding directly opposing Judge Alsup's view), the Judge is wrong on
    this point.

    Caveat: Oracle have argued that a developer wanting to write an API would first
    start with the API definitions and from there fill out the relevant code
    functionality. Other developers may argue that as code is written various
    functions are naturally grouped together in associative ways until such time as
    a "logical" API structure is derived. Let's say for the sake of
    argument that in this instant case the truth lies somewhere in between.

    I am not aware of either Oracle USA or Judge Alsup citing relevant case law to
    support this point. Am I wrong on that? Moreover, I see plenty of examples where
    the opposite is true...

    The reason I ask for this clarification is because I cannot help but wonder if
    the Court made a cardinal error when so instructing the jury. Had the Court
    indicated that there was no legal precedent for defining that SSO could be
    copyrighted, then I get the impression that Oracle would have lost every single
    point in the copyright phase of the trial.


    I was discussing this case with some non-technical friends over the weekend and
    was asked to give a simplified explanation of the relevance of SSO and it's
    relevance to the case. With no access to Groklaw, I improvised, and used the
    basic controls of a car as an example.

    My illustration explained that the "Car" code, had a whole series of
    methods by which a user ("driver") could interact with it:

    1. The steering wheel, to control direction
    2. The pedals, to operate throttle, brake and clutch
    3. Instrument switches, for functions such as lights, turn indicators, horn and
    the like.

    I explained that Oracle were saying that they had developed a "Java
    Car" and in that they had specified how to interact with the vehicle by
    selecting and positioning various controls into places which they deemed
    logical. I gave them an example of a 3-position rocker switch which operated the
    turn indicators, and a single sprung-loaded switch that operated the horn.

    I said that Google had built a "Google Car" which also provided a horn
    and turn indicators. I explained that in both vehicles, the turn indicators
    could be set to turn left, turn right, or be inactive. I explained that Google
    had decided to use a 3-position switch, as opposed to 3 different switches, and
    so on.

    The reaction I got from non-tekkies [with a non-IT example] was actually quite
    predictable. Without exception, everyone thought that Oracle were significantly
    over-reaching themselves with the claim of SSO. Maybe my example was not close
    enough to the instant case; maybe I used language or sub-conscious references
    that encouraged my audience to agree with my point of view. I have to concede
    that I cannot be objective on this matter.

    But it was fascinating to listen to the ensuing conversation. It moved rapidly
    away from the Oracle/Google dispute and tried to apply the same "Oracle
    thinking" to other things we take for granted...

    Bottom line is that you can take away all the frightfully expensive lawyer time
    and words: explain this in simple English and people will laugh because they
    just can't bring themselves to believe that Oracle are arguing with the points
    they've raised.

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    Isn't Java API Documentation machine generated
    Authored by: jlueters on Tuesday, May 08 2012 @ 01:30 PM EDT
    I am confused.
    The java api documentation is generated with a tool, javadoc.

    As far as i know machine generated code (if we assume that api documentation is

    programme code) is not protected by law, at least here in Europe. Everything
    has
    to be written down by a human beeing.

    Any idea why this topic has not been discussed during phase 1?
    Jürgen




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    Why does question 4B matter?
    Authored by: Anonymous on Tuesday, May 08 2012 @ 06:37 PM EDT
    Suppose I'm driving in a 45 mph zone. I mistakenly believe
    it's a 25 mph zone but decide to do 45 mph anyway, and I get
    pulled over. When the cop asks whether I know what the speed
    limit is, I answer honestly 25 mph. Should I really get an
    infraction for having violated my conscience when in fact
    there was no actual infraction?

    If the consequence of 4A's yes answer is that no one needs a
    license to use the API (what was the point of 4A after all),
    why does 4B matter?

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    Was anyone there today?
    Authored by: Anonymous on Tuesday, May 08 2012 @ 08:03 PM EDT
    Was anyone from Groklaw's readership at the trial today (Tuesday)? If so,
    can you give us your impressions? I'm curious how Google's opening
    statement went.

    If not, how long will we have to wait until transcripts are available?

    [ Reply to This | # ]

    From the Courtroom: Oracle v. Google, Day 1 of Patent Phase ~pj - Updated 7Xs- Partial Verdict; Oracle Wins Nothing That Matters
    Authored by: Anonymous on Tuesday, May 08 2012 @ 09:10 PM EDT
    Why doesn't google just take the 37 apis and pull them out of the OpenJDK
    source? As far as I can see, the source for openjdk was released by Sun
    under the GPL with classpath exception. Would that solve the copyright
    infringement problem?

    [ Reply to This | # ]

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