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From the Courtroom, Day 11, Patent Phase of the Oracle v. Google Trial, Jury Deliberations ~pj - Updated 6Xs
Monday, May 21 2012 @ 12:48 PM EDT

You'll be happy to know that mirror_slap is in the courtroom for Groklaw today, and so we'll be getting all the details. Meanwhile, according to Rachel King of CNET the jury has asked for a readback of the answer from the judge to an earlier question. I hope it isn't the one I thought he was unclear on myself, and I know the answer, but he now has told the jury that if they are still not clear, they can ask another question. I think they drew the impression that they can't consider Dr. Terence Parr's testimony as evidence that Google doesn't infringe Oracle's patent, and of course that is precisely what his evidence was for. If the jury misunderstands and thinks it can only consider Dr. Mitchell's testimony for Oracle as being somehow true, which some of the tweeting journalists thought had been told to them, they are going to have been seriously misled.

And we have our first report from the courtroom. And now I see that the question was actually two questions, one possibly the one that worries me or the one from Friday about a unanimous verdict, and the other is about definitions regarding one of the patents.

Jump To Comments

[Update 1, Update 2, Update 3
Update 4, Update 5, Update 6]

Here's report #1:
Oracle v. Google, Monday May 21, 2012

Arrive 7:50am Mr. Van Nest and Baber and 2 associates are here for Google. Mr. Jacobs is here for Oracle, along with a retinue of 4 other lawyers.

Dawn arrives (the clerk), and greetings are exchanged. Mr. Van Nest asks if everyone is accounted for, and Dawn says that they are.

8:05... everyone for Oracle splits, Dawn says that if anything happens, she knows how to reach them. Mr. Baber and one of his associates remain at the Google table.

9:20... activity. Oracle's lawyers come back in. 7+ 2 associates. Google's lawyers enter... same numbers. Discussion with Cathy, the court reporter, who handed back some documents. Some confusion ensues from Oracle about why they are being given the documents, when there was a question about them. About a question that was answered around noon (Friday?) about (transcript page) 4262. Mr. Van Nest and Mr. Jacobs are talking with her. Van Nest: starting at page 4263, line 3.

9:35 Judge Alsup enters... Asks whether everyone enjoyed watching the eclipse, said that he did. There is a note from the jury regarding question number 2 on 104 patent. Have you agreed?

Oracle: Yes.

Google: page 4263 line 3, through [the point where they were told to go deliberate].

Jury has a new note, and it refers to old note... what the instructions refer to in the 104 patent.

Court reporter reads back: What is meant by instructions containing one or more symbolic references? [Missed most of the readback of Judge Alsup's previous instructions ]

[Sounds to me like arguing what the definition of the meaning of the word "is" is, but that's just me. The jury is apparently really trying hard to understand what symbolic references are, or hopefully in this case, what they are not.]

Jury, when asked by Judge Alsup, indicates that their question has been answered, and they go back to deliberating.

Judge Alsup: We will now wait for the next question. [Leaves the courtroom, as does all of Team Oracle and all but three of Google's lawyers.]

One thing is very clear. This jury, or at least someone on the jury, is sincerely trying to understand.

Me too. It turns out we have a second volunteer there today, who just at the last minute decided to join in the fun. And his information is that the question was about the second question the jury sent to the judge. And King now tweets that there seems to be a third question, "Can we determine a numeric reference instruction to become symbolic because of what happens downstream?" Oracle says yes, she says. Of course it would.

The jury instructions for the patent phase of the trial and the verdict form are here. This is what the jury is struggling with. The definitions in the instructions include this section on patent '104:

11. I am now going to instruct you on the meaning of some of the words and phrases in the claims of the ’104 patent. You must accept and use these meanings in your deliberations.

Intermediate form code and intermediate form object code: Both “intermediate form code” and “intermediate form object code” mean “executable code that is generated by compiling source code and is independent of any computer instruction set.”

Symbolic reference: The term “symbolic reference” means “a reference that identifies data by a name other than the numeric memory location of the data, and that is resolved dynamically rather than statically.”

Resolve and Resolving: The term “resolving” a symbolic reference means “at least determining the numerical memory-location reference that corresponds to the symbolic reference.”

You must accept these definitions as established for purposes of your deliberations and verdict. You may, however, consider all of the evidence in the case as to whether or not the accused product or method meets these definitions. If a witness has based his view on meanings of the terms contrary to my stated definitions, you should discount that part of his testimony accordingly.

Struggling is the right word, as King says they're now asking, "Regarding symbolic reference in '104 claims, does the resolution of symbolic references need to happen immediately?" Google says the answer to that should be yes.

The jury questions indicate that once again the jury may be divided, some pushing for Oracle, some for Google. The part they don't know is that the USPTO already has preliminarily decided that the '104 patent is invalid. If that in the end is the final finding, then nothing the jury does will matter. That's why Google asked that the trial not happen until the reexaminations of the patents were final. It looks like Google was right. It would have been a better way.

Another question from the jury, via King, this time about '520 patent: "Jury also asks on determining claim language on '520, is stack synonymous with memory?"

The judge has answered the questions, and after the jury left, both parties objected to his answers. That's for the appeal.

Update: Here's our second report from mirror_slap:

Oracle v. Google, Monday May 21, part 2

10:20... activity... lawyers filing into the courtroom.

10:35 Dawn shows both sides a document. Mr. Jacobs shakes his head and smiles. Apparently the document is 3 questions from the jury that the judge wants addressed by counsel. Mr. Van Nest says to Dawn that Google is ready on the first two, and asks for some time to work on the third.

Dawn comes back and provides copies for everyone on both sides.

10:45 Judge Alsup enters... "have you seen these three notes?

Regarding symbolic reference issue, does the resolution of the symbolic references need to happen immediately, or can they contain linking of numeric references and be resolved later?

Oracle: We believe that the jury is asking questions that should be addressed in claim scope.

10:10 question should be yes [ referring to the questions by their timestamp. 10:10 is question 1, 10:15 is two-part, questions 2 and 3 below ]

10:15 first should be no. Second should be yes.

Judge Alsup requests that Dawn find question #2... he is having trouble locating it. Mr. Van Nest offers his copy to the judge, but Judge Alsup finds his copy.

Mr. Van Nest and Mr. Jacobs are before the judge.

Judge Alsup: What does the defendant say?

Google: They are both different versions of question 2, regarding 10:10 question, in order to be consistent, we have to say no.

Symbolic reference resolution... from Dr. Mitchell, the symbolic reference must be contained in the instruction. Reading back from page 3483 of the court transcript, "if the instructions only use numeric references, this does not infringe? Dr. Mitchell- would not infringe."

Google: Regarding 10:15 questions [ 2 and 3 as Judge Alsup refers to them],
1) should be yes, or, the symbolic reference must be in the instruction
2) can the instruction be considered symbolic if it has a numeric reference? the answer should be No.

Oracle: The contained question was a very narrow question. How do we determine what is contained is a numeric or symbolic reference? It depends on what happens downstream from it. Resolved dynamically rather than statically. No limitation in the court's instruction regarding directness or immediacy. A pointer to a field in a table [ is a symbolic reference ]. Absent a restriction, this is not the answer that the jury's question should be based on.

Google: Observation… both the jury questions' gist is, the jury is looking at the instructions as being numeric, and they are asking if they can subsequently become symbolic. This is not what the case is being tried on.

[Oracle wants to respond, but Judge asks them to wait. In his usual thinking mode, Judge Alsup has his left hand on his face, index finger beside his ear, the remaining three fingers curled in front of his mouth as he looks back and forth at documents on his bench.]

Judge Alsup: All right, you wanted to say something?

Oracle: Google wants to constrain using "exclusively" or "only", adding additional limitations. We looked at this in our briefing to the court. A pointer to a field in a table.

Judge: I don't agree with either of you. I will give my own answer, and you can address it on appeal.

Judge: Second question- is a stack the same as memory?

Oracle: A stack is not the same as memory. The claim is not limited to stack. Want clear no's to both questions.

Google: That wouldn't be right. Oracle said it correctly, the stack is a portion of memory for use in storing operands. All stack is memory. Not sure what synonymous means. All memory is not stack.

Judge: You both agree that stack is memory, but that all memory is not stack?

Google: Yes.

Oracle: Would confuse the jury.

Judge: Is it a correct statement that stack is memory, and that…

Oracle: Stack doesn't show up in the asserted claims. 520 patent.

Google: Either version would be correct.

Judge: Bring jury in... you lawyers aren't going to agree on anything, so bring the jury in.

[ jury enters ]

3 notes:

1) Is stack synonymous with memory? Is all memory stack? Answer to both is No.

2) "Can a determined numeric reference in the computer instruction become a symbolic reference because of what happens downstream?"

3) regarding the symbolic reference in the '104, does the resolution of the symbolic reference need to happen immediately, i.e at the field ID position in the demonstration, or can the instructions be considered to be symbolic if they have numeric references such as the setup in the demo of string id table, class columns?

Judge: The '104 claim calls out symbolic references. The term symbolic reference means a reference that identifies data by a name other than a numeric reference, and is defined dynamically and not statically.

Judge: [ to the jury] If the computer instructions contain a numeric reference, then it does not turn into a symbolic reference downstream. But how do you determine if it is a numeric or symbolic reference in the first place? Refer to my previous instructions. A numeric reference doesn't get transmogrified into a symbolic reference downstream.

I think that's the best that I can do for you here. We welcome your notes. Please send on as many as you need. Please go back and continue your deliberations.

[jury leaves ]

Judge: Any objections? [ for appeal purposes ] Speak now or forever hold your peace.

Oracle: We still think the instructions are confusing.

Google: We object to the instructions on the '520.

Judge: I hope that both sides learn something from this on patent cases. Things aren't as clear cut here as they are when you are in your rooms with your whiteboards. I am making this observation to both sides, the one that decided to sue and the one that defends... That's our system.

[Both sides seem to be either amused or in at least one instance at the Google table, taken aback by the judge's imparting of his wisdom. There are strained smiles and some limited shaking of heads after the judge leaves.]

If the judge means that this was a stupid patent case from the get go, I'd have to agree.

Update 2: Report #3:

12:50 PM. Google's team is all here. Dawn delivered another note from the jury. Some shaking of heads, grim faces. I hear footfalls in the hallway... yep, here come Oracle. Mr. Jacobs reads it and says under his breath, "Jesus".
They want to know if something matches 3 out of 4 claims, is that infringement? The judge tells them no. It has to match everything. Then he tells the parties' lawyers, after the jury leaves, that if there is another hung jury, they'd best begin thinking about what comes next.

Update 3: Mirror_slap has the details:

Oracle v. Google, Monday May 21, part 3

12:40 ... most of Google's team files in.

Judge comes in. Reads a note from a juror, "Is it true that the DVM would be infringing the '104 patent via any resolution of a symbolic reference anywhere in the data fields as shown in the demonstrative" [ DVM is Dalvik VM ]

Judge: What do we say to this?

Oracle: The answer to the question is yes. Could recite the definition of "resolving", and note that there is no additional limitation.

Google: This is the same question in different form. The answer is no. Symbolic reference has to be in the instruction. Asking whether anything in the data is symbolic ignores the way the case has been tried. What is resolved is the resolution in the instruction itself. The clear answer to this is no.

Oracle: Mixing issues again... "if all other claim limitations have been met".

Google: I don't read the question the same way. Urge the court to be consistent with prior instructions.

Judge: Bring the jury in. They said that they weren't going to go home until they got an answer to this.

[ jury comes in]

"Is it true that the DVM would be infringing the '104 patent via any resolution of a symbolic reference anywhere in the data fields as shown in the demonstrative"

Judge: This is an evidentiary point. I can tell you the law. You aren't asking me if there is a claim instruction. I cannot give you any help on the answer to this question. This is why we try these cases to a jury. It is so that you figure it out. If you want to try your hand at another question, I will try to help you with that.

So I am sorry that I cannot answer every question. I know you are working very hard on this.

Is today one of the days when you are leaving at 1 o'clock?

Foreman: Yes.

[jury leaves]

Judge: Asks question about the '104. The other one has gotten all the way through?

Oracle: Yes.

Judge: So, not to be too negative about this, but you should be considering what the next steps will be if we get a hung jury. We will wait to get a note from the jury regarding when their deliberations will end today.

[ Dawn comes in with the note from the jury saying that they are done for the day. 1:15 PM. Will start again tomorrow morning, 8 AM.]

Update 4: Rachel King has now filed her report for the day's events, and she lists the questions and then the judge's answers. Here a taste, the part about the '104 patent. The questions were:

Regarding the symbolic reference issue in ‘104 claim, does the resolution of symbolic references need to happen immediately?

Or can the instructions can be considered to contain a symbolic reference by virtue of the linking of numeric references that happen first followed by resolution?

Can we determine a numeric reference in the instructions to become a symbolic because of what happens downstream?

And King records the judges answers:
Warning that this was not going to be a yes or no answer, Alsup told the jury that sometimes there are numeric references called out in claim language.

“In earlier instructions to the jury, I defined symbolic reference to mean a reference that identifies data by a name other than a numeric memory location of the data, and that is resolved dynamically rather than statically,” Alsup continued.

He explained that if the computer instructions contain a numeric reference, then “it does not some how turn into a symbolic reference because of what happens downstream.”

However, Alsup told the jury the question then becomes how do you determine if it is a numeric reference in the first place. He answered, “In determining whether the item is a numeric versus symbolic reference in the first place, you must consult the definition that I gave you of what a symbolic reference is.”

What does it all mean? It means no matter what decision the jury reaches, it is unlikely to have much link to technical reality. First, anyone with any technical ability in the jury pool was screened out. Second, nonsense was spewed by one of the technical experts. Third, the jurors can't get along, and some at least seem to be the type that want a parent figure to decide their spats, which would, I would imagine, incline them to find for a patent holder, if there is any way possible. As one comment here on Groklaw put it:

They are passing judgement on a patent on simulated execution for a stack-based virtual machine, and they don't know what a stack is.

This would be quite funny in a less serious context. But the prejudice to Google is palpable. There is absolutely no way they can get a fair result from such a broken and unfair legal system.

If they win it will be a complete fluke. Against such an unjust system, the best defense money could buy might turn out to not be enough.

Extra humor points for the fact that they are arguing about a patent that the USPTO itself says preliminarily is invalid, although the jury has no idea about that, but Oracle just couldn't wait for that to be decided (maybe because they figured the jury wouldn't know their eyeball from their ear lobe), and the judge let them win that argument. So here we are. Hurried up and now we wait for a jury that doesn't know what a stack is. Charles Dickens could write yet another novel from this situation, don't you think?

What will happen will be an immediate appeal, no matter who "loses" or who "wins". That, of course, favors Oracle, because the Federal Circuit hardly ever sees a patent it doesn't love. It was told by the US Supreme Court again today that it got a case wrong, in light of Mayo v. Prometheus, and were told to try again.

Honestly, software patents are a mess. That is the real problem. And the USPTO has issued invalid patents, and that leaves victims like Google to try to straighten out the mess they made, in a context where everyone is forced to take the ridiculous patents seriously, presumptively valid, because the USPTO issued them. When they shouldn't have.

Do you see why I tried to avoid writing about patent litigation? It's infuriating. And hilarious. And so, so sad. Shame on Oracle for pursuing patent aggression with the likes of the '104 patent. Really. Shame. This case will be taught in law schools, I've no doubt, and it will go down in history as the stupidest patent litigation in the history of the world.

So far.

I'm sure we'll see worse before the Big Boys decide to do something about the broken patent system. If this case helps people to see how broken it is, so much the better. I can't see any other good coming out of this.

Update 5: Our "volunteer" volunteer got sick and left at noon, but he still found a way to send us his report, to fill in a few more details, and I certainly wish to say thank you to him and all our volunteers, as doing this is a real sacrifice:

So - I will just try to add things that the reports of mirror_slap did not mention.

I do not really have anything meaningful to add to the first report. For the second report:

The first question from the jury was:

Can a determined numeric reference become a symbolic reference of something that happens downstream later?
The second question from the jury was along the same line, but from another member of the jury:
Does the resolution of symbolic references have to happen immediately, or [something about numeric references by the virtue of linking symbolic references. It was quite long, I never managed to get it completely].
These two questions were answered first together.

Oracle answered first and wanted to answer:

* yes to the first question
* no to the first part of the second question (does the resolution have to happen immediately)
* yes to the second part of the second question
Google answered second and wanted to answer:
* no to the first question
* yes or "the symbolic reference must be contained in the instruction stream" to the first part of the second question
* no to the second part of the second question
After that Oracle stepped up again and argued that:
*the contained questions are narrow and should be answered in a narrow way
*how does one determine if something is numeric or symbolic? And then something about that Google uses numeric addresses that point to a table that contains symbolic references and that things can be indirectly symbolic.
After that Google stepped up again and argued that the questions should be answered as it first proposed because that is exactly what the expert witnesses told earlier. Google especially tried to nail the importance of the word "determined" I think.

After that Oracle tried to step up again and was made to wait a few minutes. The lawyer then tried to argue that the "determined" argument of Google opens up something new and argued more about numbers first pointing to a table, but I think the judge's mind was already made up at that point.

After that the judge said: "I do not agree with either of you" and continued with question 3:

"Is a stack synonymous with memory" and is all memory stack?
Oracle: clear no's.

Google: stack is a portion of memory.

Judge: something I did not catch.

Google: all stack is memory, memory is not confined to the stack.

The judge tried to get Oracle and Google to agree on this, but Oracle argued that it is factually correct but not in the claim language. And something about that it answers more than the jury asked. And that stack clearly is not synonymous with memory.

The judge seemed pretty much fed up at that time and said that they are not going to agree, to bring the jury back in, and that he will do the best he can.

He then read back the questions and answered the jury:

No and no to the stack question (the answer Oracle wished to give)

For the other two questions, he answered in a very lengthy way. He said that a determined numeric reference can not become a symbolic reference because of something that happens downstream. A computer can not make a numeric reference symbolic later. But he told the jury that to figure out if a reference is numeric or symbolic, they have to consider what happens downstream with it. They should look at the value contained in the instruction stream. If this value refers to an actual memory location, it is numeric. And that it is their job to determine this.

After that the jury got sent away again.

The judge still seemed a little upset to me, asked the lawyers if they have any objections. After they were noted he told them that things do not come down in the courtroom as in your rooms with the whiteboards. And I think that it is not as easy to understand for other people what all this is about. And that this went differently than either Oracle or Google imagined.

Update 6: We now have the transcript [PDF] of the day.


  


From the Courtroom, Day 11, Patent Phase of the Oracle v. Google Trial, Jury Deliberations ~pj - Updated 6Xs | 286 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Corrections here
Authored by: feldegast on Monday, May 21 2012 @ 12:57 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 | # ]

News picks
Authored by: feldegast on Monday, May 21 2012 @ 12:58 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 | # ]

Tweets from the courtroom
Authored by: feldegast on Monday, May 21 2012 @ 01:00 PM EDT
https://twitter.com/#!/Feldegast

https://twitter .com/#!/Feldegast/oracal-vs-google-trial

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

[ Reply to This | # ]

Off topic
Authored by: feldegast on Monday, May 21 2012 @ 01:01 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 | # ]

Comes transcribing
Authored by: feldegast on Monday, May 21 2012 @ 01:02 PM 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 | # ]

Uh Oh! The '104 patent.
Authored by: PolR on Monday, May 21 2012 @ 01:32 PM EDT
The question seems to be about the '104 patent. This means they haven't kicked
it out based on dynamic resolution.

We have a very confused jury.

[ Reply to This | # ]

Total eclipse of the Sun?
Authored by: BJ on Monday, May 21 2012 @ 01:45 PM EDT
says Alsup: "everyone enjoyed watching the eclipse"

Ah, how I love it, as an amateur astronomer, that judge
Alsup knows how to bring some perspective into the mad
and sad affairs of this here the sub-lunary (almost mis-
typed there...).

bjd


[ Reply to This | # ]

The problem with lay juries
Authored by: Anonymous on Monday, May 21 2012 @ 02:22 PM EDT

From the judge:

Symbolic reference: The term “symbolic reference” means “a reference that identifies data by a name other than the numeric memory location of the data, and that is resolved dynamically rather than statically.”

From the jury;

"Regarding symbolic reference in '104 claims, does the resolution of symbolic references need to happen immediately?"

What part of the word dynamically do they not understand?

[ Reply to This | # ]

Another problem with juries
Authored by: Anonymous on Monday, May 21 2012 @ 02:46 PM EDT
I have been on juries, and one of the problems is that so many people feel so in
over-their-heads that they take anything the judge says as an order that they
must follow, regardless of their own common sense.

How did we get to the absurd point where Judges and Lawyers tell juries that
they are not allowed to think? I guess because Judges and lawyers really hate
juries and want to be the sole arbitrators of what the law is, so they lie to
the jurors to make them think their hands are tied. It is a sick system.

This jury's confusion is entirely due to 1) Lies told by lawyers and 2) lies
told by the judge, all in an attempt to control what is supposed to be THE
JURY's opinion.

We have no justice in the US. We have law, but not justice. It is so sad to
see a country set up with such hope and promise to be destroyed by lawyers and
judges and rampant legislative bribery.

[ Reply to This | # ]

How are average people supposed to understand
Authored by: kawabago on Monday, May 21 2012 @ 02:52 PM EDT
Expecting average people to understand what is supposedly the
cutting edge of technology is asking too much. Worse, if they
get it wrong whole technology sectors can be affected.
Technological progress does not happen in a court room, it
ends there. Intellectual Property is spiraling out of control
and will soon bring progress to a complete standstill.
Imagine not being able to buy salt because someone managed to
get it taken off the market for copyright infringement.
That's where we're heading.

[ Reply to This | # ]

Trollish Threads Here
Authored by: artp on Monday, May 21 2012 @ 03:22 PM EDT
In case this article brings them out like the last one did.

Checking - no, it isn't a full moon. Must have been the
topic.

---
Userfriendly on WGA server outage:
When you're chained to an oar you don't think you should go down when the galley
sinks ?

[ Reply to This | # ]

Is the judge an "expert"?
Authored by: Anonymous on Monday, May 21 2012 @ 03:25 PM EDT
Some of the jury questions seem to be technical in nature. Is Alsup
overstepping his authority by answering them himself?

[ Reply to This | # ]

Jury doesn't understand burden of proof is on Oracle
Authored by: Anonymous on Monday, May 21 2012 @ 03:33 PM EDT
They seem to be searching for ways that the Oracle claims can
be made to fit. But they shouldn't be doing Oracle's team's
job for them. If Oracle couldn't present a clear case then
they haven't proven it.

[ Reply to This | # ]

From the Courtroom, Day 21, Oracle v. Google Trial, Jury Deliberations ~pj - Updated
Authored by: Anonymous on Monday, May 21 2012 @ 03:37 PM EDT
If the jury misunderstands and thinks it can only consider Dr. Mitchell's testimony for Oracle as being somehow true, which some of the tweeting journalists thought had been told to them, they are going to have been seriously misled.

Can't the judge just come out and say that it's the whole purpose of the jury to decide the veracity of the witnesses and use their own commonsense?

His previous answer seems to try very hard be as vague as possible.

[ Reply to This | # ]

Ockham's razor
Authored by: rsteinmetz70112 on Monday, May 21 2012 @ 03:44 PM EDT
It has occurred to me that if the Jury is having such a hard time deciding if
Android uses these patents there probably isn't enough proof that if does.

As I wrote before we basically have a he said he said and the jury just should
pick the expert they feel is more honest.

It does feel like the jury is somehow split.

---
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 | # ]

transmogrified?
Authored by: Anonymous on Monday, May 21 2012 @ 03:45 PM EDT
Awesome.

[ Reply to This | # ]

From the Courtroom, Day 21, Oracle v. Google Trial, Jury Deliberations ~pj - Updated
Authored by: Anonymous on Monday, May 21 2012 @ 03:46 PM EDT
If nothing else, this case has underscored what a hopeless mess the U.S.
legal system is. I'm so glad I don't have to live in your country.

[ Reply to This | # ]

Stack is not synonymous with memory
Authored by: Anonymous on Monday, May 21 2012 @ 03:53 PM EDT
While the stack lives in memory, it's not the same thing. Rather, we're taught
to imagine it like a stack of plates, where you "push" new plates on
the stack and "pop" existing plates off of it. You generally use it
for temporary things or function return values and you expect it to get cleaned
off fairly regularly when programs are finished with that data. This is in
contrast with the "heap" which is where larger and usually more
permanent allocations of memory are made.

Both live in memory, but as terms of art, they're not exactly synonymous with
that.

On the other hand, it would be very strange if there were some symbolic
reference or whatever on the stack and they said it wasn't in memory. But maybe
this is just a side-effect of bamboozling the jury? It would be ironic if all
that nonsense came back to bite Oracle.

[ Reply to This | # ]

Google did a really bad job with defense on the patents
Authored by: Anonymous on Monday, May 21 2012 @ 04:27 PM EDT

Google and their lawyers have done a really bad job in the patent phase. The '104 patent should have been a complete slam dunk even with Oracle's witness lying on the stand (wonder what that will cost Standford in alumnus giving ;-). They have pinned their hopes on the issue of the symbolic reference not being in the instructions, and the resolution being static not dynamic

However, there are two much bigger problems with the patent, which Oracle opened the door to in their closing statement: Oracle complained that Google had not shown the data lookup on some or other chart:

The next step in the chain is the realization that Google wasn't presenting a complete depiction of what's going on. This slide doesn't depict the actual field value; it doesn't depict the actual data object from which the data is being retrieved. What Google showed you was some intermediate steps on the way to retrieving the value. They told you to go to Courtroom 8, and they showed you going to the directory to figure out where it is, but you still have to look it up in the directory.

This requirement, that the patented invention look up the data is a huge issue and is in several of the asserted claims. The reason that Google does not show this is because if dexopt tried to look up the actual data it would crash, because that data does not exist.

The reason for that is the much more fundamental problem that all of the asserted claims require the patented invention to be executing the code at the time of transformation. dexopt is not executing the code. Dalvik executes the code, and Dalvik does not transform instructions or do any code rewriting.

If the patent language can be mangled to imply that the time of execution and the time of look-up can be separated, then the patent is doing nothing more that standard static linking, which has been done since at least 1959, according to Wikipedia. I think Google hoped that the dynamic part would cover that...

A good illustration for this is when you are waiting in a line at the window in a bank, and the line is long and they have someone going over the forms you have, and then redirecting you to someone else who can handle that type of query more effectively. The teller is the machine doing the execution, the person helping presort is the optimizer.

On the '520 patent, they did a better job, but they should have pushed home the point that simulation requires that feeding in different but equivalent inputs requires getting the same output, but pattern matching does not. Then asked why dexopt failed in the tests with tweaked input.

Regards,
  -Jeremy

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Update 3
Authored by: Anonymous on Monday, May 21 2012 @ 04:34 PM EDT
The answer to the jury's question is obviously 'No'. The demonstratives
include all of the data structures involved in resolving a field reference, in
addition to the instructions.

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if something matches 3 out of 4 claims, is that infringement?
Authored by: Anonymous on Monday, May 21 2012 @ 04:52 PM EDT
This text is from Rachel's tweet: "if something matches 3 out of 4 claims, is that infringement?" The judge answers, no.

I think the question must have been "if something matches 3 out of 4 parts of a claim, is that infringement?" A device doesn't need to match all claims in order to infringe. It's often logically impossible to match all claims simultaneously since they're often written to cover mutually exclusive alternatives.

For example, the patent may say the invention covers anything that:

  • (claim 1): A and B
  • or (claim 2): A and not B and C
  • or (claim 3): A and C and D
  • or ...
Nothing can match both claim 1 and claim 2. Anything that matches all parts of any single one of the claims is potentially infringing.

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From the Courtroom, Trial Day 21, Jury Deliberations, Court Frustrations - Updated 3.1417Xs
Authored by: webster on Monday, May 21 2012 @ 04:59 PM EDT
.

At this point the Judge is clearly frustrated. They have 21 days and no real
decision. That is 21 past days wasted in his courtroom, and about that many
days in the future to try and resolve the same questions.

We are months away from the re-run of fair use. Will patents join again? Will
he reserve his API decision until all other issues are resolved? We may be less
than halfway before this is even final for appeal.

Given his experience and programming knowledge, he has his own firm belief on
the issues. If the jury doesn't agree with him, do not be surprised if he
overrules them.

.

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If there is a mistrial on patents also ...
Authored by: Anonymous on Monday, May 21 2012 @ 05:33 PM EDT
... and this all goes to a new trial -- does that throw out
the summary judgments on the other patents as well? Does
everything start from scratch again?

I don't know if it's good or bad for Google, but it's looking
more and more like nothing will be accomplished by this
particular trial and it's all going to start over again.

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Ahm. Back on SoapBox -- Juries and Tech
Authored by: Anonymous on Monday, May 21 2012 @ 08:48 PM EDT
Assumption 1. Juries are not going to go away. American law is built around
them. American political theory requires them.

Assumption 2. Juries are going to continue to be screened to remove
technological knowledge relevant to the case at trial. The theory of juries
requires X numbers of equal deliberators, not one or two 'experts' and a herd of
followers. Thus 'mixed' juries are worse than uninformed ones.

Assumption 3. There will not be 'blue-ribbon' juries composed of selected
experts for technical cases. If you think voir-dire is bad now, consider doing
it to technically select a specialist jury. Shudder.

HERE'S THE PROBLEM (In Theory)
The jury has to begin in a state of technical ignorance.
BUT
The jury has to be able to deliberate and decide precisely the technical
questions they were selected to be ignorant about.

SOLUTION (In Theory)
The parties' lawyers through the adversarial presentation of evidence will
provide sufficient information for the jury to understand the technology and
decide the issue...
IF THEY (the lawyers) ARE ALLOWED AS MUCH TIME AS IT TAKES TO PRESENT ALL THAT
EVIDENCE.

REALITY
Judges, as this judge has done, have started to aggressively manage their trial
times because they have to. This judge set fixed time allotments for each party
and those allotments were markedly too small for the technologies in question.
We, the interested non-party public, the parties and the judge now have a mess,
and the poor jurors are drowning in it.

CONCLUSION (Jumped to)
EITHER
a) the judge allows the lawyers to talk talk talk talk annnd talk, on open time
allotments so that ALL THE TECHNICAL BACKGROUND IS INTRODUCED,
OR
b) the judge has to arrange for the technical education of the jury before the
lawyers start spouting their technical whatever.

OTHERWISE
Trials that involve technical issues will continue to turn into roulette without
the wheel.

/endrant

Thank you for your interest in judical reform
Please put donations in the coffee can

obviously not a lawyer
JG

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What a stack is, and concerning resolution
Authored by: wvhillbilly on Tuesday, May 22 2012 @ 02:13 AM EDT
Stack is a portion of memory set aside for temporary storage of values, such as
when the program needs to access the operating system, and needs to preserve the
present state of the various processor registers. The usual way to do this was
to call a subroutine which pushed (copied) the values from the various registers
onto the stack in sequence, and then made a call to the required system
function. On return, these values would be popped (copied back) off the stack to
the processor registers in reverse order (stack access is first in, last out) to
restore the registers to the same state they were in before the system call,
then control returned to the program at the next instruction past the call to
the subroutine. Standard operating procedure.

As for resolving memory addresses, the only fixed address we used was 100h, the
starting location for the program. The source code was written entirely with
mnemonics, words representing processor instructions. Subroutines or other
memory locations were identified with labels, words representing memory
locations. On assembly the assembler assigned memory locations for each
instruction, converted the instruction mnemonics into binary code and resolved
the address of the various labels into the physical memory addresses where they
were located in the assembled program. Again, S.O.P. I suppose this is what
Oracle defines as static resolution.

Another thing that was done was lookup tables. I once wrote a small print
driver for an Okidata 92 printer in 8080 assembler using these lookup tables
where one could embed tags in text to access subroutines to change fonts and the
like. The program would convert these tags into a location in the lookup table,
then copy the value from that location in the lookup table into the address
register and jump to that address, where the instruction for the desired
function was in the program. I'm thinking this is what Oracle is defining as
dynamic resolution. Again this was S.O.P. for programming in assembler and all
contained in a book I had purchased for the purpose of learning programming in
assembly language. As I recall, this was back in the late 80s or early 90s. A
long time ago, anyway.
I did it on a DEC Rainbow with CP/M if that tells you anything about the time.

I wonder, could this be used as prior art to invalidate Oracle's patent on
dynamic linking?


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

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Symbolic references - update 5
Authored by: PolR on Tuesday, May 22 2012 @ 04:26 AM EDT
It seems that the jury, judges and the parties tripped on the very issue that
was controversial among us a couple articles ago when we discussed Dr Mitchell
testimony. If the instruction contains a pointer to something that is symbolic
or to a structure which contains something symbolic, is it a symbolic reference?
After how many indirections does a reference stop being symbolic?

if i remember well, we didn't agree among ourselves on this. There were sensible
arguments for several answers.

The particular algorithm claimed by the patent is obscure. It is not possible to
know exactly what is being claimed from the words of the patent alone. The jury
is struggling to find where are the boundaries of the patent so they can tell
whether or not there is infringement. But nobody can tell them that because this
patent has no clear boundary.

Add to this the misleading testimony of Dr Mitchell on what is dynamic execution
and what is a simulated execution and this jury has an intractable problem on
their hand. I believe a hung jury would be a reasonable outcome because they are
being asked unanswerable questions.

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Random
Authored by: Anonymous on Tuesday, May 22 2012 @ 10:24 AM EDT
It is almost funny. All those lawyers. All that paper. All
the erudite scholarship and carefully contrived arguments.
All that fuss and bother and expense reduces to this. A jury
of ignorant mushrooms will fill the jury form out based on
some random process. Perhaps they'll toss a coin.

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  • Random - Authored by: PolR on Tuesday, May 22 2012 @ 10:34 AM EDT
Patent System issues go far beyond software
Authored by: Anonymous on Tuesday, May 22 2012 @ 01:42 PM EDT

And any "fix" to clear software only out, won't fix the problems.

In my opinion, the entire Patent System needs to be "rebooted",
anything
less will make the problems worse.

Wayne
Http://madhatter.ca

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