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Oracle v. Google - Patent Marking Facts - A Timetable
Tuesday, January 03 2012 @ 09:00 AM EST

When we last visited the parties on the issue of evidence of patent marking, the parties had reached agreement with respect to process but not timetable. (See, More Arguments with Respect to the Cockburn Damages Report) The parties have now reached agreement on the timetable, and it appears a further concession by Oracle that trial is not imminent.

Per their agreement (661 [PDF; Text]), by January 6 Oracle will identify and document (either with source code or other printed documentation or by identification of witnesses) those Oracle products, including licensed products, that embody the asserted claims. By January 20 Google will identify any other Oracle or licensed products that practice the asserted claims and/or challenge the products listed by Oracle as to their actual practice of the claims, along with support for Google's position. Finally, following Google's disclosure the parties will meet to try to agree to a list of stipulated practicing products and/or identify products on which they do not agree and why, and that information will be submitted to the court by January 27.

So progress on the patent marking front, but clearly no January trial date.

***********

Docket

661 - Filed and Effective: 12/30/2011
Statement
Statement re 641 Order Joint Statement Regarding Supplemental Order Regarding Patenting Marking by Google Inc., Oracle America, Inc.. (Peters, Marc)


************

Document

661

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
SAN FRANCISCO DIVISION

ORACLE AMERICA, INC.
Plaintiff,
v.
GOOGLE INC.
Defendant.

Case No. CV 10-03561 WHA

JOINT STATEMENT REGARDING
SUPPLEMENTAL ORDER
REGARDING PATENTING
MARKING

Dept.: Courtroom 8, 19th Floor
Judge: Honorable William H. Alsup

Pursuant to the Court’s December 6, 2011 Supplemental Order Regarding Patenting Marking (Dkt. No. 641), Google and Oracle met-and-conferred in person regarding a procedure and timetable regarding the marking issues, as directed by the Court. In so doing, the parties agreed to a procedure for identifying products that practice the asserted patents and for identifying any disputes, but could not agree to a timetable. (12/20/11 Joint Statement Regarding Supplemental Order Regarding Patenting Marking (Dkt. No. 643).) Following the December 21, 2011 Pre-Trial Conference, at which the Court advised the parties to further meet and confer regarding a timetable, the parties have reached an agreement, as follows:

1. On January 6, 2012, Oracle will provide an identification, for each of the 26 asserted claims, of each Oracle product, Oracle-licensed product, Sun product, or Sun-licensed product (“Oracle Products”) that practice or have practiced the claim. Oracle will also identify the fact witnesses who possess information supporting Oracle’s contentions that the Oracle Products practice or have practiced the asserted claims, as well as provide a summary of testimony Oracle intends to elicit at trial from those witnesses regarding those Oracle Products’ practice of the claims. Oracle will also provide source code citations and/or other documentation supporting Oracle’s contentions that the Oracle Products practice the asserted claims.

2. On January 20, 2012, Google will respond to Oracle and identify any other Oracle Products that Google contends practiced any of the 26 asserted claims during the alleged damages period and identify any products in Oracle’s identification that Google contends do not practice the identified claims. Google’s response will specify which Oracle Products it contends do (or do not) practice the asserted claims, and why.

3. Following Google’s response, the parties will meet-and-confer regarding their disclosures with the aim of preparing a stipulation of which Oracle Products practice the asserted claims. On January 27, 2012, the parties will jointly submit to the Court a list of the Oracle Products that they stipulate practice the asserted claims, which shall have the effect of establishing that fact for all purposes at trial, and a list of those Oracle Products for which there is a genuine dispute between the parties as to whether they practiced the asserted claims, along with brief explanations of the basis for each party’s contention.

1

Dated: December 30, 2011

MORRISON & FOERSTER LLP

By: /s/ Marc David Peters

MORRISON & FOERSTER LLP
MICHAEL A. JACOBS (Bar No. 111664)
[email]
MARC DAVID PETERS (Bar No. 211725)
[email]
DANIEL P. MUINO (Bar No. 209624)
[email address telephone fax]

755 Page Mill Road BOIES, SCHILLER & FLEXNER LLP
DAVID BOIES (Admitted Pro Hac Vice)
[email address telephone fax]
STEVEN C. HOLTZMAN (Bar No. 144177)
[email address telephone fax]

ORACLE CORPORATION
DORIAN DALEY (Bar No. 129049)
[email]
DEBORAH K. MILLER (Bar No. 95527)
[email]
MATTHEW M. SARBORARIA (Bar No. 211600)
[email address telephone fax]

Attorneys for Plaintiff
ORACLE AMERICA, INC.

2

Dated: December 30, 2011

KEKER & VAN NEST LLP

By: /s/ Matthias Kamber

SCOTT T. WEINGAERTNER (Pro Hac Vice)
[email]
ROBERT F. PERRY
[email]
BRUCE W. BABER (Pro Hac Vice)
[email address telephone fax]

DONALD F. ZIMMER, JR. (SBN 112279)

[email]
CHERYL A. SABNIS (SBN 224323)
[email]
KING & SPALDING LLP
[address telephone fax]

GREENBERG TRAURIG, LLP
IAN C. BALLON (SBN 141819)
[email]
HEATHER MEEKER (SBN 172148)
[email address telephone fax]

KEKER & VAN NEST LLP
ROBERT A. VAN NEST (SBN 84065)
[email]
CHRISTA M. ANDERSON (SBN184325)
[email]
DANIEL PURCELL (SBN 191424)
[email address telephone fax]

Attorneys for Defendant
GOOGLE INC.

3

ATTESTATION

I, Marc David Peters, am the ECF User whose ID and password are being used to file this JOINT STATEMENT REGARDING SUPPLEMENTAL ORDER REGARDING PATENTING MARKING. In compliance with General Order 45, X.B., I hereby attest that Matthias Kamber has concurred in this filing.

Date: December 30, 2011

/s/ Marc David Peters

4


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