After receiving Robert Van Nest's letter suggesting he may have conflicts with the April-June timeframe for trial, Judge Alsup has responded that he is not budging, and the parties better keep their calendars open. (749 [PDF; Text]) The judge indicates he will be surprised if the other trials for which Van Nest is scheduled actually occur as scheduled. Until they do, he intends to stick with the April-June schedule. Of course, this could change if he is convinced that waiting for the last of the USPTO reexaminations will reduce the length of this trial.
While we are at it, we should also step back and take a look at one of the minor filings from yesterday, the declaration of Hinkmond Wong. (745 [PDF; Text]) What draws our attention are the comments that seek to establish that (a) Wong was not involved in identifying the patents that would be asserted in this litigation and (b) that his earlier activities in reviewing the Sun patents for possible infringement by Android did not influence his categorization of the patents last month in support of Dr. Cockburn's third attempt at a damages report.
From Mr. Wong:
Although I have some knowledge of the Android platform, and I have assisted lawyers in analyses to determine whether Android infringes Oracle’s patents, neither aspect of that work had any effect on my work for this assignment.
I have never selected any patents for this litigation or any other.
This last statement is one of those statements that is technically correct (i.e., it was the attorneys, not Wong and the engineers, who selected which patents to assert) but which belies the fact that it was the analysis of the engineers that strongly influence the attorneys in selecting the patents to assert.
Also, not to be lost in all of this is that, based on the track record established so far in reexamination, one would expect only about 88 of those 569 patents relevant to smartphones to actually survive reexamination, and it isn't necessarily the most important ones.
One is left with the strong sense that there is nothing that is objective about any of this infringement action. This isn't like an action to establish title to real property or the boundaries of real property. Those things have a degree of measurable certainty and objectivity. Here it is a belief that the patents are valid (which most are proving not), a belief that they are infringed (with little objective proof surfacing to date), a belief as to the value of the asserted patents (based on assumption piled on top of assumption but all declared to be based on scientific analysis). This whole process bears a far greater resemblance to fiction than non-fiction. In the end I am reminded of a statement made by the court (Federal Circuit) in the case of State Contracting & Engineering Corp. v. Florida:
While we agree with the district court that this language is unambiguous, we disagree with the district court's interpretation of this language.
There has to be a better way to run a railroad (or an economy).
749 – Filed and Effective: 2/27/2012
Document Text: NOTICE REGARDING FEBRUARY 24 LETTER re 748 Letter filed by Google Inc.. Signed by Judge Alsup on February 27, 2012.. (whalc1, COURT STAFF) (Filed on 2/27/2012) (Entered: 02/27/2012)
IN THE UNITED STATES DISTRICT COURT
ORACLE AMERICA, INC.,
FOR THE NORTHERN DISTRICT OF CALIFORNIA
No. C 10-03561 WHA
FEBRUARY 24 LETTER
The Court has received the February 24 letter from Attorney Robert Van Ness. A notice
on this subject should have been sent in response to the notice and order dated January 20, 2012.
In any event, in the Court’s experience, conflicts such as the ones listed in the letter will likely
evaporate as those trial dates approach. If those listed trials do proceed as scheduled, then and
only then will there be a problem and only then will we have to consider whether to proceed with
our own trial starting in mid-April. Personal vacation by counsel will in no event be an excuse
for delay. Again, all counsel and witnesses must be available between mid-April and mid-June
for a possible trial. Whether a trial date will be set for that period depends on when this action
will be trial ready, a decision not yet made.
Dated: February 27, 2012.
UNITED STATES DISTRICT JUDGE