decoration decoration
Stories

GROKLAW
When you want to know more...
decoration
For layout only
Home
Archives
Site Map
Search
About Groklaw
Awards
Legal Research
Timelines
ApplevSamsung
ApplevSamsung p.2
ArchiveExplorer
Autozone
Bilski
Cases
Cast: Lawyers
Comes v. MS
Contracts/Documents
Courts
DRM
Gordon v MS
GPL
Grokdoc
HTML How To
IPI v RH
IV v. Google
Legal Docs
Lodsys
MS Litigations
MSvB&N
News Picks
Novell v. MS
Novell-MS Deal
ODF/OOXML
OOXML Appeals
OraclevGoogle
Patents
ProjectMonterey
Psystar
Quote Database
Red Hat v SCO
Salus Book
SCEA v Hotz
SCO Appeals
SCO Bankruptcy
SCO Financials
SCO Overview
SCO v IBM
SCO v Novell
SCO:Soup2Nuts
SCOsource
Sean Daly
Software Patents
Switch to Linux
Transcripts
Unix Books
Your contributions keep Groklaw going.
To donate to Groklaw 2.0:

Groklaw Gear

Click here to send an email to the editor of this weblog.


To read comments to this article, go here
Oracle v. Google - Google Requests Continuance; Not Likely
Thursday, March 15 2012 @ 09:10 AM EDT

Google lead counsel, Robert Van Nest, has requested the court's leave to file a motion for a continuance of the trial to avoid conflicts in his trial schedule. (792 [PDF; Text]) The court has agreed Google can file the motion but told Van Nest not to hold his breath. (794 [PDF; Text])

Van Nest has two conflicting trials. The first is scheduled to end no later than April 20 (four days after the commence of this trial) and the second is to commence on June 29, which is about 10 days after this trial should end. Van Nest has asked, in the alternative, either a delay in the start of this trial to April 30 (which would push the end date of this trial beyond the start of his June 29 trial) or a delay until the September-December time frame Judge Alsup asked the parties to reserve.

The Court has responded that Van Nest can go forward with his motion, but the Court has also made clear the motion is not likely to go anywhere. Apparently Judge Alsup contacted the Texas court, and they have advanced the date of that trial to avoid a conflict. Once that conflict has been avoided, there is not likely to be a conflict on the back end, although Judge Alsup indicates his colleague, Judge Koh, would likely accommodate any spillover by delaying the start of the June 29 trial.

You certainly have to wonder whether this motion was not prompted, at least in part, by a desire by Google to get the reexamination of the '104 patent to a final action, but that's just speculation. What is clear is that Mr. Van Nest is going to disappoint his family by having to cancel their scheduled May vacation overseas.

In other matters John Cooper, counsel to the Court's damages expert, Dr. James Kearl, has written the Court seeking to correct a misunderstanding with respect to the completion of Dr. Kearl's damages report. (790 [PDF; Text]) That report has certainly become far more important now that most of the Cockburn report is out the window. The Court gave conflicting instructions between the March 7 hearing and its order on the Cockburn report. At the hearing Dr. Kearl was told not to complete his report until the Cockburn order was rendered. So Kearl held off. Then, in an order following the decision on Cockburn order, the Court directed Kearl to release his report. Cannot do, replied Cooper. As a result, the Kearl report is now scheduled for release on March 21, Dr. Kearl having to rework or eliminate numerous sections as a result of the Cockburn order, with the follow-up actions being extended. The Court has accepted this revised schedule.

On behalf of Kearl, Cooper also seeks clarification of the nature of the $561 million figure the Court adopted from the Cockburn report for the copyrights and patents. Kearl wants to know whether that is a floor, i.e., damages cannot be below that amount (or at least the portion of that amount representing the copyrights and patents in suit), whether it is a ceiling (barring anything higher), or whether it is the exact amount (allowing no variance).

The Court responded (791 [PDF; Text]) that the $561 million figure is only limiting on Oracle and that Dr. Kearl is free to rely on the Google experts or on any other number upon which he arrives. What is clear is that Dr. Kearl has free rein to adopt any approach he believes appropriate, and he is not limited to the approaches advanced by the parties.

In the final request of the day (793 [PDF; Text]), the Court has requested the parties to brief the following:

... the mechanism by which the Java programming language is free and open for anyone to use but the APIs are not. If the Android platform does not infringe Oracle’s copyrights by using the Java programming language, how has Google infringed Oracle’s copyrights by using Java APIs? Did Sun statements that made the Java programming language available for all to use expressly reserve as to the Java APIs?
Now I admitted I am not all that tech savvy (and thanks to all of our readers who, by overwhelming majority, established the truth of that statement), but I find this inquiry to be more than a bit disturbing. We are more than a year and a half into this litigation, and it is quite clear the Court does not grasp the relationship between the Java programming language and the APIs. Of course, the good news is that he is seeking that understanding now, before the trial begins. We're not certain, but we are pretty sure the "open sourcing" of the programming language had no impact on the APIs. On the other hand, if the programming language was "opened" but the APIs were not, what utility did "opening" the Java programming language really have? Feel free to chime in on that point.


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

Docket

03/13/2012 - Set/Reset Hearings: Jury Selection and Jury Trial set for 4/16/2012 07:30 AM in Courtroom 8, 19th Floor, San Francisco before Hon. William Alsup. (dt, COURT STAFF) (Filed on 3/13/2012) . (Entered: 03/13/2012)

03/13/2012 - 789 - ORDER GRANTING IN PART AND DENYING IN PART MOTIONS TO SEAL by Hon. William Alsup granting in part and denying in part 717 Administrative Motion to File Under Seal.(whalc1, COURT STAFF) (Filed on 3/13/2012) (Entered: 03/13/2012)

03/13/2012 - Order by Hon. William Alsup granting in part and denying in part 727 Administrative Motion to File Under Seal.(whalc1, COURT STAFF) (Filed on 3/13/2012) (Entered: 03/13/2012)

03/13/2012 - Order by Hon. William Alsup granting in part and denying in part 733 Administrative Motion to File Under Seal.(whalc1, COURT STAFF) (Filed on 3/13/2012) (Entered: 03/13/2012)

03/13/2012 - Order by Hon. William Alsup granting in part and denying in part 736 Administrative Motion to File Under Seal.(whalc1, COURT STAFF) (Filed on 3/13/2012) (Entered: 03/13/2012)

03/13/2012 - Order by Hon. William Alsup granting in part and denying in part 750 Administrative Motion to File Under Seal.(whalc1, COURT STAFF) (Filed on 3/13/2012) (Entered: 03/13/2012)

03/13/2012 - Order by Hon. William Alsup granting in part and denying in part 761 Administrative Motion to File Under Seal.(whalc1, COURT STAFF) (Filed on 3/13/2012) (Entered: 03/13/2012)

03/13/2012 - Order by Hon. William Alsup granting in part and denying in part 772 Administrative Motion to File Under Seal.(whalc1, COURT STAFF) (Filed on 3/13/2012) (Entered: 03/13/2012)

03/13/2012 - 790 - Letter from John L. Cooper to Hon. William Alsup re Dr. Kearl, Rule 706 Expert. (Cooper, John) (Filed on 3/13/2012) (Entered: 03/13/2012)

03/14/2012 - 791 - NOTICE RE DR. JAMES KEARL re 790 Letter filed by John Lee Cooper. Signed by Judge Alsup on March 14, 2012. (whalc1, COURT STAFF) (Filed on 3/14/2012) (Entered: 03/14/2012)

03/14/2012 - 792 - Letter from Robert A. Van Nest re Trial Date . (Van Nest, Robert) (Filed on 3/14/2012) (Entered: 03/14/2012)

03/14/2012 - 793 - REQUEST FOR BRIEFING. Signed by Judge Alsup on March 14, 2012. (whalc1, COURT STAFF) (Filed on 3/14/2012) (Entered: 03/14/2012)

3/14/2012 - 794 - ORDER RE REQUEST TO CONTINUE TRIAL [re 792 Letter filed by Google Inc.]. Signed by Judge William Alsup on 3/14/2012. (whasec, COURT STAFF) (Filed on 3/14/2012) (Entered: 03/14/2012)

3/14/2012 - 795 – Transcript of Proceedings held on March 7, 2012, before Judge William H. Alsup. Court Reporter/Transcriber Katherine Powell Sullivan, RPR, CRR, CSR, Telephone number 415-794-6659/Katherine_Sullivan@cand.uscourts.gov. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerks Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction. After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. Redaction Request due 4/4/2012. Redacted Transcript Deadline set for 4/16/2012. Release of Transcript Restriction set for 6/12/2012. (Sullivan, Katherine) (Filed on 3/14/2012) (Entered: 03/14/2012)


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

Documents

790

[Farella Braun + Martel LLP letterhead]

March 13, 2012

United States District Court
Northern District of California
450 Golden Gate Avenue
San Francisco, California 94102

Re: Oracle America, Inc. v. Google Inc., No. 3:10-CV-03561-WHA (N.D. Cal.)

Dear Judge Alsup:

I write on behalf of Dr. James Kearl. The purpose of this letter is to respond to the Court's Request and Notice, issued at noon today, ordering Dr. Kearl to release his expert damages report to the parties by noon tomorrow. (Dkt. 787) The Court indicates that this request is based on its assumption that the report is finished "as represented at the March 7 hearing."

We fear that there has been a misunderstanding. At the March 7 hearing, Dr. Kearl represented, through his undersigned counsel, that he would be ready for trial in mid-April, ready for a deposition at the end of March and his report would critique the positions of the parties' experts. He did not intend to represent—and does not believe that he did represent—that his report was then completed. It was not. In addition, on March 7, shortly after the hearing, the Court issued a Notice to Dr. Kearl advising that he "should wait to finish his report and not release it until further order from this Court." (Dkt. 776. Emphasis added.) Dr. Kearl interpreted this statement to be a recognition that his report was not done and he should wait to


The Honorable William Alsup
March 13, 2012
Page 2

finish his report until directed by the Court. Accordingly, Dr. Kearl did not work to complete his report between March 7 and today.

In a separate Order also issued today, the Court granted in part Google's Daubert Motion to exclude Dr. Cockburn's Third Report. (Dkt. 785.) Dr. Kearl is still digesting this Order, but notes that the Court excludes significant portions of Professor Cockburn's analyses and opinions, including the "Econometric" analysis, most of the "Conjoint" analysis, the entirety of the "Independent Significance" approach, and portions of the "Group and Value" approach. The Order also appears to set the total value of the copyrights-in-suit and 569 patents in Sun's Java mobile patent portfolio at $561 million, and to limit the patents-in-suit to the '520 and '104 patents.

The Court's January 9 Directive ordered that Dr. Kearl's report "be limited strictly to the matters left standing by motion practice." (Dkt. 686.) Today's Order on Dr. Cockburn's Third Report thus substantially impacts Dr. Kearl's analyses and opinions as they are currently constituted, and requires him to significantly revise his approach, opinions, and report. Dr. Kearl was prepared to critique the econometric and conjoint analyses, and intended to opine on both in his report. Dr. Kearl also intended to rely on corrected econometric and conjoint analyses in his own apportionment work. Today's order precludes him from using his own corrected econometric and conjoint analyses, which use data from Professor Cockburn's econometric analysis and Prof Shugan's conjoint analysis. Dr. Kearl will therefore need to turn to Dr. Cockburn's group-and-value approach for his own apportionment work. Dr. Kearl intends to do this as quickly as possible, but even working non-stop, will require an additional week to


The Honorable William Alsup
March 13, 2012
Page 3

complete his work. Dr. Kearl regrets that he cannot complete his report by noon tomorrow, and respectfully requests that the Court allow him until 5:00 p.m. on Wednesday, March 21, to release his completed report.

I have consulted with Steven Holtzman of Boies, Schiller & Flexner LLP, counsel for Oracle, and Daniel Purcell of Keker & Van Nest LLP, counsel for Google, regarding this request. I am authorized to inform the court that the parties agree to the following schedule: Dr. Kearl report: March 21 (7 day extension); Dr. Kearl deposition: by March 28 (5 day extension); any challenges: April 2 (3 day extension); Oppositions: April 6 (1 day extension); Hearing (if needed): April 9 (as ordered).

In addition, to the degree permissible, Dr. Kearl would appreciate clarification from the Court on an issue raised by the Order (Dkt. 785.) on Dr. Cockburn's Third Report, which would streamline Dr. Kearl's preparation of his report: On page 11, the Court states, "Accordingly, $561 million shall be the total value of the copyrights in suit and 569 patents in Sun's Java mobile patent portfolio." Drs. Leonard and Cox argue that the value of the copyrights-in-suit and 569 patents in Sun's Java mobile patent portfolio (the "portfolio") is lower than this amount. Dr. Kearl respectfully requests clarification as to whether the Court means that Professor Cockburn cannot argue that the portfolio is worth more than $561 million, or that no expert can argue that the portfolio is worth anything other than $561 million?

Sincerely yours,

/s/John L. Cooper

John L. Cooper


791

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA

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

No. C 10-03561 WHA

NOTICE RE DR. JAMES KEARL

_____________________________________

The Court has received Attorney John Cooper’s March 13 letter and responds as follows. The alternative scheduled agreed upon by the parties is adopted. Dr. James Kearl’s report will be due on March 21, his deposition will be finished by March 28, challenges to the report must be filed by April 2, any oppositions must be filed by April 6, and a hearing, if needed, will be on April 9.

In response to additional concerns in the letter, the Court confirms that Dr. Kearl should calculate patent damages only for the ’104 and ’520 patents. Also, the order for Dr. Ian Cockburn to adjust his valuation of the copyrights in suit and Sun’s Java mobile patent portfolio to $561 million does not preclude other experts from using a different valuation or a completely different approach altogether.

Dated: March 14, 2012.

/s/William Alsup
WILLIAM ALSUP
UNITED STATES DISTRICT JUDGE


792

[Keker & Van Nest LLP letterhead]

March 14, 2012

Honorable William Alsup
U.S. District Court, Northern District of California
Courtroom 8 -- 19th Fl.
350 Golden Gate Avenue
San Francisco, CA 94102

Re: Oracle America, Inc. v. Google Inc. Case No. 3:10-cv-03561 WHA

Dear Judge Alsup: Google respectfully requests leave to file a motion to continue for a short period the trial in this matter. Good cause exists for the requested continuance because Google's lead trial counsel has pending trial commitments in other matters that conflict with the April 16 trial date.

I am lead trial counsel for Google in this case. Good cause exists for a continuance of the April 16 trial because I (and several other members of Google's trial team) will not be available for at least a portion of the scheduled eight-week trial. See generally Fed. R. Civ. P. 16(b)(4). As Google stated in the Joint Pretrial Conference Statement filed in December and again in my letter of February 24, 2012, I am presently scheduled to commence trial in Commonwealth Scientific and Industrial Research Organization v. Lenovo (United States) Inc., E.D. Tex. No. 6:09-cv-399 LED (Hon. Leonard Davis) on April 9. Defendants are requesting a ten-day trial through April 20. The pretrial conference in that case is set for March 22, 2012


Honorable William Alsup
March 14, 2012
Page 2

Our trial team in the Commonwealth Scientific case includes several other professionals from my firm who are on the Google trial team for this case: namely, attorneys Christa Anderson and Matthias Kamber, and paralegals Gary Padilla and Raina Magat. I am also set for trial in Genentech Inc. v. Trustees of the University of Pennsylvania, N.D. Cal. No. 5:10-cv-02037 LHK (PSG) (Hon. Lucy Koh) on June 11, 2012. Judge Koh recently advised the parties that she expects the trial to last through the end of June, and she has scheduled a bench trial concerning certain issues on June 29, 2012. he pretrial conference in that case is scheduled for May 30.

Accordingly, Google's motion would seek to continue the trial in this case until after my June 29, 2012 bench trial in Genentech Inc. v. Trustees of the University of Pennsylvania. This continuance would allow me to fulfill my professional obligations in other cases, while still serving as lead trial counsel to Google for the entirety of this matter. In the alternative, Google's motion would request that the Court continue the trial date in this case two weeks to April 30, 2012. This brief, two-week continuance would allow me to return from the Commonwealth Scientific trial in Texas in time to try as many phases of this case as I can before beginning my trial before Judge Koh.

The requested continuance would not prejudice Oracle. The difference between an April trial and a trial a few months later is insignificant in light of Oracle's delay in pursuing this case. Android was first announced in November 2007 and has been on the market since October 2008. Oracle waited until August 2010 to file its complaint, and it has never sought a preliminary injunction to remedy any alleged "irreparable harm" allegedly cause by Android. To he contrary, Oracle has sought billions of dollars in damages as compensation for that alleged harm. Were Oracle to prevail at trial, a damages award would be sufficient to compensate


Honorable William Alsup
March 14, 2012
Page 3

Oracle for any such harm. Oracle therefore has no basis to complain that a short continuance to allow Google's lead counsel to be available will somehow prejudice Oracle.

I have done everything possible to avoid these conflicts. In the parties' December 7, 2011 Joint Pretrial Conference Statement, I advised the Court of my prior trial commitments "in the first few months of 2012 that could conflict with the trial date in this case." (Dkt. 644 at 3-4). At the December 21, 2011 Final Pretrial Conference, the Court advised the parties that it would attempt to work around prior trial commitments. December 21, 2011 Hg. Tr. [Dkt. 662] at 133:16-21 ("MR. VAN NEST: I have a number of conflicts Your Honor, in April. THE COURT: All right, that was who I'm thinking of. You know, if you got conflicts, I'm going to try to help you out, you are the lead lawyer. But if that goes away, maybe we could try it in the spring."). The Court further advised the parties that, while an April or May trial was a possibility, they should reserve September-December of 2012 for trial of this matter. Id. at 164:12-19. In light of these comments, I did not attempt to withdraw as lead counsel in either of the other cases.

For the foregoing reasons, Google respectfully requests leave to file a motion to continue the trial date until after June 29, 2012, or, alternatively to April 30, 2012. In the event the Court grants Google's request, I will promptly advise the Court of any changes to my trial schedule in the other matters described herein.

Sincerely,

KEKER & VAN NEST LLP

/s/ Robert A. Van Nest

ROBERT A. VAN NEST


793

FOR THE NORTHERN DISTRICT OF CALIFORNIA

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

No. C 10-03561 WHA

REQUEST FOR BRIEFING

_________________________________________

In the reply briefs on copyright due March 23, please explain the mechanism by which the Java programming language is free and open for anyone to use but the APIs are not. If the Android platform does not infringe Oracle’s copyrights by using the Java programming language, how has Google infringed Oracle’s copyrights by using Java APIs? Did Sun statements that made the Java programming language available for all to use expressly reserve as to the Java APIs?

Dated: March 14, 2012.

/s/ William Alsup
WILLIAM ALSUP
UNITED STATES DISTRICT JUDGE


794

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA

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

No. C 10-03561 WHA

ORDER RE REQUEST
TO CONTINUE TRIAL

_________________________________________

A motion for continuance may be made but the prospects for relief are not great. The Texas case has been advanced as of today to take some pressure off of counsel. The Court believes that Judge Koh will accommodate counsel once our trial is underway. If not, there are a large number of counsel in this case for both sides to be able to try this case effectively. If the lead counsel is absent for a few days from our trial because of other commitments, it will be a manageable problem in such a long trial as our own. The Court’s own calendar permits this case to be tried, if at all, this year, starting APRIL 16. This is, in part, due to congestion arising from the after-effects of the MS-13 trials (four of them over the last two years), causing a backlog. The Court has reserved mid-April to mid-June for this case and counsel have been asked for several months to do likewise. Any motion must be promptly made and promptly answered.

IT IS SO ORDERED.

Dated: March 14, 2012.

/s/ William Alsup
WILLIAM ALSUP
UNITED STATES DISTRICT JUDGE


  View Printable Version


Groklaw © Copyright 2003-2013 Pamela Jones.
All trademarks and copyrights on this page are owned by their respective owners.
Comments are owned by the individual posters.

PJ's articles are licensed under a Creative Commons License. ( Details )