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Oracle declines to press its motion to dismiss, so motion is dismissed - Updated - Scheduling Order
Thursday, November 18 2010 @ 02:11 AM EST

Oracle has filed a Reply Memorandum regarding its motion to dismiss or strike Google's invalidity counterclaim, some of Google's affirmative defenses, and some of Google's Answer, what Oracle called "impertinent matter", and it in essence said never mind. After Google's powerful filing the other day, I'm not surprised. But I'm also very glad to see Oracle take this step. If it has valid claims, it will be able to pursue them without nastiness. I'm really pleased to see what I would call progress.

So the judge has denied Oracle's motion, since it declines to press it, and the scheduled hearing on this motion, scheduled for December 2nd, is canceled.

Here's Oracle's filing:

11/16/2010 - ADR Remark: ADR Phone Conference held by RWS on 11/16/10. (sgd, COURT STAFF) (Filed on 11/16/2010) (Entered: 11/16/2010)

11/16/2010 - 54 - Reply Memorandum re 35 MOTION to Dismiss invalidity counterclaims MOTION to Strike 32 Answer to Complaint, Counterclaim (motion to strike certain affirmative defenses and impertinent matter) MOTION to Strike 32 Answer to Complaint, Counterclaim (motion to strike certain affirmative defenses and impertinent matter) filed byOracle America, Inc.. (Jacobs, Michael) (Filed on 11/16/2010) (Entered: 11/16/2010)

And here's the meat of its position:
Taken together, these two measures – the invalidity contentions required by the local rules and the interrogatories we intend to serve – will call upon Google to detail the theories and facts underlying its pleading by mid-January, 2011. We are satisfied this will achieve the practical objective of giving us fair notice of what Google has in mind in defending this case. [...] For the foregoing reasons, while we could continue to make an issue out of Google’s pleadings, we decline to continue to press our motion to dismiss. We note that, in view of the Court’s schedule, if Google continues to hide the ball, we will have ample reason to seek additional recourse.
Oracle does argue that its motion is not moot, that the insufficiencies it identified are still there, and in fact made worse, as it explains in this footnote:
1 Not only does Google’s new pleading fail to correct the pre-existing deficiencies, it adds to them. Google now asserts eight new defenses (including that Oracle’s works are not copyrightable, that Oracle’s copyrights are unenforceable, that Google independently created the infringing work, and that Google’s copying is fair, de minimus, and the fault of unidentified third parties) and one new counterclaim (non-infringement of copyright). The new defenses and counterclaim are pled as insufficiently as the others.
But it says it should be able to get the information it needs sooner than by this motion, and so it doesn't choose to press forward. "The pace of the tentative case schedule mandates that we obtain early notice of Google’s theories, but we have alternative means of obtaining that." For example, Oracle will send Google interrogatories, and here's what the first one will read like:
Please explain the factual and legal bases for Google’s pleading of its first affirmative defense: No Patent Infringement.
There will be others similarly requiring Google to stop hiding the ball, as Oracle puts it:
For the foregoing reasons, while we could continue to make an issue out of Google’s pleadings, we decline to continue to press our motion to dismiss. We note that, in view of the Court’s schedule, if Google continues to hide the ball, we will have ample reason to seek additional recourse.
That's perfectly fair to say. I'd say we are back to a more normal tone. There is a dispute, and it needs to be resolved, but afterwards, Google and Oracle will need to be friends again, at least to the extent that they will no doubt want to work on similar issues from time to time.

Here's the judge's ruling:

11/17/2010 - 55 - ORDER DENYING ORACLE'S MOTION TO DISMISS AND STRIKE AND VACATING HEARING by Judge Alsup denying 35 Motion to Dismiss; denying 35 Motion to Strike (whalc1, COURT STAFF) (Filed on 11/17/2010) (Entered: 11/17/2010)

And here's the meat of it, in fact the totality of it:
Oracle America, Inc. has “decline[d] to continue to press [its] motion” to dismiss Google Inc.’s invalidity counterclaims and strike certain affirmative defenses and impertinent matter, because required disclosures and discovery responses “will achieve the practical objective of giving [Oracle] fair notice of what Google has in mind in defending this case” (Reply 3). Accordingly, Oracle’s motion is DENIED. The hearing scheduled for December 2, 2010 is VACATED."
Update: Here's the scheduling order and what happened at the initial case management conference on the 18th:

11/18/2010 - 57 - Minute Entry: Initial Case Management Conference held on 11/18/2010 before William Alsup (Date Filed: 11/18/2010), Case referred to Private ADR. Jury Selection set for 10/31/2011 07:30 AM in Courtroom 9, 19th Floor, San Francisco. Jury Trial set for 10/31/2011 07:30 AM. (Court Reporter Sahar McVickar.) (dt, COURT STAFF) (Date Filed: 11/18/2010) (Entered: 11/19/2010)

11/19/2010 - 56 - CASE MANAGEMENT SCHEDULING ORDER: Case referred to private mediator. Private mediation must be completed thirty days after Markman order. Mediator must be on board by 12/31/2010. A tutorial for the Court (to be conducted by counsel only) shall be set for 4/6/2011 at 1:30 PM. Claims Construction Hearing set for 4/20/2011 01:30 PM. Discovery due by 7/29/2011. Jury Trial set for 10/31/2011 07:30 AM in Courtroom 9, 19th Floor, San Francisco. Motions due by 9/8/2011. Pretrial Conference set for 10/17/2011 02:00 PM in Courtroom 9, 19th Floor, San Francisco. Signed by Judge William Alsup on 11/18/2010. (whasec, COURT STAFF) (Filed on 11/19/2010) (Entered: 11/19/2010)

So, supposedly the trial will happen on October 31, 2011, but don't bet on it. Meanwhile, there is mediation, and I wouldn't rely on that to settle this either, although I still hope for it.

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