There is no decision yet from the judge on Google's motion to strike portions of Oracle's third attempt to come up with an acceptable damages report in Oracle v. Google. But the latest news is that right after the hearing on Wednesday, the judge filed an order that the court-appointed expert, Dr. James Kearl, hold off on finishing his report. That's of interest, because in the hearing, the judge asked Kearl's lawyer if the report would be finished on time. So something seems to be up.
Thus spake [PDF] Judge Alsup:
Dr. James Kearl should wait to finish his report and not release it
until further order from this Court. Now, you can't reliably predict what a judge will do from signs on the pathway. All you can do is say what you think he *should* do, but still, if you were Oracle, wouldn't you be sweating bullets? Earlier, if I recall correctly, the same judge told the parties that until Oracle filed an acceptable damages report, there'd be no report from the court's expert. And do you remember at an
earlier hearing, the judge said there was consensus at a conference he went to among all the judges and patent lawyers in attendance that damages in patent cases were getting out-of-hand?
Everyone in the room, Judge Rader, everyone, they were talking, these damages reports are out of control, we got to do something about it. One of Oracle's lawyers, Michael A. Jacobs of Morrison & Foerster, was there at that conference, presumably in agreement, according to the judge's account. Yet, Oracle keeps asking for huge numbers in its reports. I think we can now assume, from this order, that the judge wasn't looking too favorably on Oracle's efforts or at least is having deep thoughts about the way forward.
The document and the minutes of Wednesday's hearing:
I can't understand why Oracle keeps asking for such huge damages, especially when the cards it's holding are so bad, as it turns out, or why it keeps on
defending doing things its way instead of the judge's, when the judge has made it clear how he feels, that Oracle has been overreaching.
03/07/2012 - 775 - Minute
Entry: Motion Hearing held on 3/7/2012 before William Alsup (Date Filed:
3/7/2012) re 718 MOTION to Strike Portions of Third Expert Report by
Iain Cockburn and Expert Report by Steven Shugan; Memorandum of Points
and Authorities in Support Thereof filed by Google Inc. Motion taken
under submission. (Court Reporter Kathy Sullivan.) (dt, COURT STAFF)
(Date Filed: 3/7/2012) (Entered: 03/07/2012)
03/07/2012 - 776 - NOTICE TO
DR. JAMES KEARL. Signed by Judge Alsup on March 7, 2012. (whalc1, COURT
STAFF) (Filed on 3/7/2012) (Entered: 03/07/2012)
I'm afraid it might mean Oracle's legal team, which includes Boies Schiller, plans to drag this through a lengthy appeals process until the end of time, again, just like in the SCO saga, where SCO was also represented by Boies Schiller. Or maybe they think that the judge warns but never actually follows through? He warned they'd get no third try if they failed on the second draft, and yet he gave them a third chance after all. So perhaps they think he doesn't mean what he says. I think that would be a mistake, after watching this same judge in the Apple v. Psystar case.
How are damages supposed to be figured? I didn't know myself, not being a patent expert, but I came across a filing [PDF] in another current patent case, Apple v. Motorola (1:11-cv-08540, before Judge Posner in Illinois, Northern District), that I found helpful. Perhaps you will too.
It's a filing by Motorola, but it lays out what it views as the state of the law on how to calculate damages. Being advocacy, not a ruling by a judge or jury, you can assume they are trying to make a point, but the cases are explained well, so I think you'll find it helpful in understanding the arguments at Wednesday's hearing in Oracle v. Google. At least, I did.
What happened is, I was curious why Apple was putting out stories that it was open to settling with Motorola and others. So I took a look at that docket, and sure enough, Apple seems to be getting what one might call "The Oracle Experience". That's where you file a patent infringement suit against a competitor, and they fight back in a way you didn't expect and you start to lose.
And that's when you *should* try to settle, frankly, before you lose badly.
Years ago, Dan Ravicher, Esq. told me that he wasn't too worried about Microsoft or anyone suing over patents, because there wasn't enough money in patent litigation to make it worth their while. That was before juries started to go wild. He also told me that there was a lot of prior art that no one in the proprietary world was taking into consideration, prior art that the community had safely in its back pocket. And that surely has proven true. It's not in the USPTO databank, but it's out there in the real world, because FOSS developers were the mapmakers of the Internet and the digital world. Remember when Bill Gates finally understood that the Internet mattered? Well, guess who had already built it? And they are pretty much all still alive, so when some company stakes a claim of ownership of some tech, they say, "Huh? You were not the first". And they know just where to go to find the evidence.
At the time, I was hyperventilating over Microsoft's patent ambitions, which I foresaw, and I was trying to get others to see the danger I saw on the horizon. I must
say, Microsoft has done pretty much what I thought it would, and worse, but Dan's point proved to be true. Look at the patent aggressors. What in the world is the payoff for this noxious strategy? Oracle's patents have been dropping like dead flower petals, and it's hard to win if all you have on the table is dead patents. Of course, we know from watching Boies Schiller in action in the SCO saga, and in the weird Florida gardener case, that they persist long after it seems reasonable. Sometimes that pays off, but mostly it just leaves an ugly bruise.
The odd thing is Oracle, historically, didn't approve of software patents. As a friend, may I say to Oracle, look at how things are going, and *think*. You had it right before. And if Oracle wins on the API claims, it's going to alter the software industry radically, where only a couple of large companies get to keep everyone else out of competition by controlling access on a whim. Copyrights last for a lifetime and more, so imagine the stagnation.
Apple too. It's obvious Apple doesn't need patents to win in the marketplace. It wins on quality, the real beauty of its products, as well as by vendor deals, and its constant innovation, sometimes incremental, sometimes in astonishing leaps. That's enough to stay a leader. And it's how a company *should* win. Microsoft isn't in that fast lane, so it can't do that, but Apple can, so why follow in Microsoft's unpleasant footsteps? It's affecting the Apple brand. And look what's happening with Microsoft's patents. Nothing is working out well for the patent aggressors so far.
I know. They won't listen to me. But at least I felt I should say it. Settle, by all means, everyone, and put this stupid smartphone war down. It's hurting everyone. Patent aggression is offensive, and it's costing everyone, as I knew it would.
To Google's credit, it has not gone around suing its competitors, only responding defensively. Sometimes you hear people cynically talk about "Don't be evil," but seriously, look at the smartphone wars. Where's the evil? Google takes punches and then defends itself, but it isn't following a "win by patents" strategy of aggression against its competition.
The real solution is an end to software patents altogether. Let's learn from the smartphone patent mess. Software patents are a tax on innovation, a drag on successful companies, whereby the wrong people end up with unearned gains, and folks trying to actually make great products have to pay greedy people instead for absolutely nothing they wanted or need, at worst, or pay to avoid having to hand over money that could go to more innovative products but instead goes to lawyers to fight to protect against those who can't innovate but can work the patent system to skim off the top of other people's success. That is the real villain in this picture.
Being a success has a tax on it now, the Software Patent Tax. And, thanks to the smartphone patent wars, we've seen now the quality of these patents being wielded as weapons. Barnes & Noble showed us the low "quality" of Microsoft's patents in that litigation. Didn't you find it either jaw-droppingly horrifying or utterly hilarious to think of Microsoft getting victims to sign up for patents like that? My reaction was to say, "Well, so *that's* why Microsoft is always so secretive about what patents it claims are being infringed."
Now Oracle is losing the very patents they thought would bring Google to its knees. And Apple is not reaping the results they dreamed of by a long shot. But if you are not one of the players caught up in the patent wars, just a member of the public, don't you want ridiculous patents to be tossed overboard? I do.
I actually want more than that, an end to this dangerous and harmful experiment in allowing software patents to issue at all. It was a mistake, and I hope folks realize it before it's too late, now that we are reaping the whirlwind.