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To read comments to this article, go here
Oracle v. Google - Agreeing (or Not) on the Issues
Tuesday, April 10 2012 @ 10:00 AM EDT

The Court and the parties continue to clear the decks for trial with a series of orders and proposed stipulations. The Court has asked that the parties, when submitting their latest briefs on the copyright issues this Thursday, provide:

... a separate pleading setting forth proposed non-argumentative findings of fact regarding the 37 APIs as they relate to the issue of the copyrightability of their structure, selection, and organization.
(877 [PDF; Text]) That will provide Judge Alsup a list of possible findings from each side from which he may choose.

The Court also issued orders on the trial time to be allotted for Dr. Kearl, the Court's damages expert (878 [PDF; Text]) and the parties' equipment request (880 [PDF]).

In turn, the parties have submitted an agreed timeline of key dates (885 [PDF; Text]) and a proposed stipulation regarding trial procedures (884 [PDF; Text]).

In the most interesting filing of the day, Oracle has filed an opposition to Google's motion to deem certain issues as undisputed. (882 [PDF; Text]) Google, in its motion (861 [PDF; Text]), identified three issues it considered undisputed:

  1. The Java programming language is open and free for anyone to use.
  2. The names of the Java language API files, packages, classes, and methods are not protected by copyright law.
  3. Aside from a nine-line function that Oracle accuses Google of copying, Oracle does not contend that Android’s source code in any of the accused APIs was copied from the source code used in the Java platforms.

Oracle, in what has to be an amazing display of contrariness, says these issues aren't undisputed. First, Oracle complains saying the Java programming language is open and free for anyone to use is confusing and misleading. Specifically, they say the jury will be mislead into immediately concluding that there has been no infringement of the APIs and class libraries. But that statement, in and of itself, is also misleading, for Oracle is only claiming infringement of the API specifications, not Google's source or object code implementation.

I will be the first to admit that understanding the structure and operation of Java, even for a person with some limited programming skills from years ago, is challenging. When I was at Red Hat, my good friend, Anthony Green, spent days (or was it weeks or months) helping me understand the structure and operation of Java. I finally got it, but for someone who had never used objects in programming (I cut my teeth on Fortran and Basic well back in the last century), this structure was not intuitive. So I agree with Oracle that the broader concept will provide challenges to both parties in getting the jury to understand what is and is not contested here, but for goodness sake, why should it be an issue that the Java programming language is under an open source license and free for all to use. Unless, of course, Oracle wants to ensure that the jury is confused.

In its next amazing leap Oracle argues that Google misread the Court's order with respect to the names of the Java language API files, packages, classes, and methods not being protected by copyright law. That summary judgment can be found here [PDF; Text]. Oracle argues that providing that finding alone without the additional caveat that collections of such names may be protected by copyright is misleading. Again, what Google is asking be deemed undisputed is exactly what the Court found. Is it then necessary to introduce that which is still disputed, i.e., whether the collection of names rises to the level of copyright protection?

The last argument is over whether, except for a few lines, the Android source code that implements the APIs was copied from the Oracle Java source code. Here we have numerous quotes from prior proceedings in this case in which Oracle's counsel appears to take contradictory positions. Clearly Oracle wants to keep this issue open because, with a lot of hand waving and gesturing, they are going to try to make the minor items at issue appear to be wholesale copying of all of the Java API source code. Google, for its part, recognizes that and wants to be sure the jury understands this is a very minor issue in the context of the bigger issues at trial. One thing is for sure, Oracle, whether purposefully or not, has failed to be consistent in its arguments and admissions on this point.

In a final filing Google has filed an unredacted version of its supplemental copyright liability brief. (887 [PDF; Text]) This replaces the earlier redacted filing (831) The information now included are the actual statements made by Jonathan Schwartz in his deposition, none of which are terribly surprising.


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

Docket

04/09/2012 - 877 - REQUEST FOR PROPOSED FINDINGS. Signed by Judge Alsup on April 9, 2012. (whalc1, COURT STAFF) (Filed on 4/9/2012) (Entered: 04/09/2012)

04/09/2012 - 878 - ORDER REGARDING TRIAL TIME ALLOCATED TO DR. KEARL re 855 Letter filed by John Lee Cooper. Signed by Judge Alsup on April 9, 2012. (whalc1, COURT STAFF) (Filed on 4/9/2012) (Entered: 04/09/2012)

04/09/2012 - 879 - ORDER DENYING MOTION TO SEAL by Hon. William Alsup denying 830 Administrative Motion to File Under Seal.(whalc1, COURT STAFF) (Filed on 4/9/2012) (Entered: 04/09/2012)

04/09/2012 - 880 - ORDER AUTHORIZING ENTRY AND USE OF EQUIPMENT FOR TRIAL by Hon. William Alsup granting 864 Stipulation.(whalc1, COURT STAFF) (Filed on 4/9/2012) (Entered: 04/09/2012)

04/09/2012 - 881 - ORDER GRANTING MOTION TO FILE UNDER SEAL by Hon. William Alsup granting 875 Administrative Motion to File Under Seal.(whalc1, COURT STAFF) (Filed on 4/9/2012) (Entered: 04/09/2012)

04/09/2012 - 882 - RESPONSE (re 861 MOTION Administrative Relief to Deem Issues Undisputed ) filed by Oracle America, Inc.. (Jacobs, Michael) (Filed on 4/9/2012) (Entered: 04/09/2012)

04/09/2012 - 883 - Statement Parties' Joint Timeline by Oracle America, Inc.. (Muino, Daniel) (Filed on 4/9/2012) (Entered: 04/09/2012)

04/09/2012 - 884 - STIPULATION WITH PROPOSED ORDER REGARDING TRIAL PROCEDURES filed by Oracle America, Inc.. (Muino, Daniel) (Filed on 4/9/2012) (Entered: 04/09/2012)

04/09/2012 - 885 - Statement Parties' Joint Timeline [With Corrected Attestation] by Oracle America, Inc.. (Muino, Daniel) (Filed on 4/9/2012) (Entered: 04/09/2012)

04/09/2012 - 886 - Declaration of David Zimmer in Support of 849 Administrative Motion to File Under Seal ORACLE AMERICA, INC.S ADMINISTRATIVE MOTION TO FILE UNDER SEAL PORTIONS OF ORACLES MOTION TO EXCLUDE PORTIONS OF THE RULE 706 EXPERT REPORT OF DR. JAMES KEARL filed byGoogle Inc.. (Attachments: # 1 Proposed Order Granting Motion to File Under Seal)(Related document(s) 849 ) (Van Nest, Robert) (Filed on 4/9/2012) (Entered: 04/09/2012)

04/09/2012 - 887 - TRIAL BRIEF Google's Supplemental Copyright Trial Brief Pursuant to March 26, 2012 Order Unredacted Public Version by Google Inc.. (Van Nest, Robert) (Filed on 4/9/2012) (Entered: 04/09/2012)

04/09/2012 - 888 - DOCUMENT E-FILED UNDER SEAL re 881 Order on Administrative Motion to File Under Seal Letter re Telephone Call by Google Inc.. (Van Nest, Robert) (Filed on 4/9/2012) (Entered: 04/09/2012)

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

Documents

877

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

REQUEST FOR
PROPOSED FINDINGS

When counsel submit their briefs this Thursday, each side should also file a separate pleading setting forth proposed non-argumentative findings of fact regarding the 37 APIs as they relate to the issue of the copyrightability of their structure, selection, and organization. Please limit the proposed findings to 300 words in total and break the findings into short, numbered items. The judge will use these as a guide for listening to the evidence to see what has been proven or not, among other possible uses. Please make sure that the proposed findings, if adopted, would be sufficient under the law to sustain a judgment in your favor.

IT IS SO ORDERED.

Dated: April 9, 2012.

/s/ William Alsup
WILLIAM ALSUP
UNITED STATES DISTRICT JUDGE


878

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 REGARD TRIAL TIME
ALLOCATED TO DR. KEARL

Pursuant to the parties’ stipulated request, two hours will be allocated for Dr. James Kearl’s direct testimony at trial. This time will not be charged against either party. Time on cross examination will be charged against the parties unless, once we are at that juncture, the interests of justice requires enlargement of the parties time.

IT IS SO ORDERED.

Dated: April 9, 2012.

/s/ William Alsup
WILLIAM ALSUP
UNITED STATES DISTRICT JUDGE


882

MORRISON & FOERSTER LLP
MICHAEL A. JACOBS (Bar No. 111664)
[email]
KENNETH A. KUWAYTI (Bar No. 145384)
[email]
MARC DAVID PETERS (Bar No. 211725)
[email]
DANIEL P. MUINO (Bar No. 209624)
[email]
[address]
[phone]
[fax]

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

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

Attorneys for Plaintiff
ORACLE AMERICA, INC.

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

ORACLE'S OPPOSITION TO
GOOGLE'S MOTION FOR
ADMINISTRATIVE RELIEF TO
DEEM ISSUES UNDISPUTED

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


I. INTRODUCTION

Google's motion proposes three statements of supposedly admitted fact that would presumably be read to the jury. Each is inappropriate for that purpose. The first proposal concerning the use of the Java programming language would cause prejudicial confusion because it fails to note the distinction between the programming language and what is at issue here: the APIs and class libraries. The second proposal concerning names misreads the Court's summary judgment order and is an incomplete statement of law, not an admitted fact. The third proposal concerning Android's copying of Java API source code is both inaccurate and inappropriately argumentative.

II. ARGUMENT

A. Google's First Proposal — "The Java programming language is open
and free for anyone to use" — Is Confusing and Misleading
Google's unauthorized copying of Oracle's Java APIs and class libraries is the focus of the copyright case. Oracle has asserted no claim regarding use of the Java programming language. The Court has recognized the importance of that distinction to Oracle's case and the potential for jury confusion. (3/28/12 Hr'g Tr. at 77:16-25 ("I promise you, there are going to be people on the jury who when they understand that you have no claim to the Java programming language, that's going to be the end of the line for them.").) By addressing only the Java programming language without addressing the APIs, Google's proposal unfairly exacerbates that potential for confusion.

In its Amended Counterclaims, Google acknowledged that the Java programming language is distinct from the Java APIs and class libraries. In the first paragraph of its Amended Counterclaims, Google admitted and alleged that the Java programming language is distinct from the Java runtime environment: "While they are distinct elements, the term 'Java' is commonly used to refer to the programming language, the runtime environment, as well as the platform." (Google Amended Counterclaims ¶ 1, ECF No. 51 at 13.) In the third paragraph of its Amended Counterclaims, Google admitted and alleged that the Java runtime environment includes the Java class libraries:


Upon information and belief, the Java platform comprises many different components, including utilities to assist with the development of source code written in the Java programming language, a Java compiler that converts Java programming language statements to Java bytecode, a Java runtime environment consisting of Java virtual machines written to operate on a number of different computer platforms and a set of standard class libraries that can be accessed and reused by Java platform applications to perform common software functions, such as writing to files or sorting data.
(Id. ¶ 3, at 14 (emphasis added).)

The statements that Google made in its pleading are judicial admissions that are conclusively binding on Google. "Factual assertions in pleadings and pretrial orders, unless amended, are considered judicial admissions conclusively binding on the party who made them." Am. Title Ins. Co. v. Lacelaw Corp., 861 F.2d 224, 226 (9th Cir. 1988); see also Gradetech, Inc. v. Am. Emp'rs. Grp., No. C 06-02991 WHA, 2006 U.S. Dist. LEXIS 47047, at *9 (N.D. Cal. June 29, 2006) (holding fact asserted in another complaint was judicial admission).

Google now would like to blur the distinction between the Java programming language and the APIs at issue, as it attempts to steer the Court and jury towards its desired outcome: a finding that the Java APIs are uncopyrightable. (See Google's 4/3 Copyright Liability Trial Brief, ECF No. 852 at 11 ("As a purely technical matter, there is no bright line distinction between the Java programming language and the Java language APIs.") and 13 ("Java language programmers treat the APIs as part of the language.").) But its own pleadings prevent that.

To the extent necessary, the evidence at trial will also confirm that the Java language is distinct from the APIs. Google's copyright expert opined that "'Java' may refer to three very different things: the Java programming language, the Java Application Programming Interfaces (APIs), or software source code that references and implements the APIs." (Astrachan Opening Expert Report, ECF No. 262-1 ¶ 7 (emphasis added); see also id. ¶ 54 ("[D]ifferent programming languages can be used to implement a particular API. In the case of Android, both the Java programming language and the C programming language were used to create code to implement the APIs at issue.").)

If the Court is inclined to read Google's statement to the jury, then the Court should also inform the jury that: "The Java APIs and class libraries are distinct from the Java programming

2


language." Oracle will promptly present a motion asking the Court to do just that.

Google's proposal is also prejudicially misleading. In Oracle's April 3 copyright brief, Oracle explained how it provides the Java Development Kit for download by application developers, who use it to write their own Java-language programs. (ECF No. 853 at 5.) The JDK is made available under license, though without charge (id.), and this is the sense in which application developers are "free" and "open" to use the language. Indeed, many application developers use the tools provided in the JDK to compile the source code they write for Android applications, and they are permitted to do so. But the statement "[t]he Java programming language is open and free for anyone to use" glosses over the complexities of the licensing issues in this case. Oracle has been consistent: it is not asserting copyright claims based on the Java programming language for purposes of this case. So there is no good reason to give the jury a confusing instruction about the language.

B. Google's Second Proposal — "The names of the Java language API
files, packages, classes, and methods are not protected by copyright
law" — Misreads The Court's Order and Is a Statement of Law, not
Fact
The Court should reject Google's second proposal for two reasons. First, it misreads the Court's summary judgment order. In its summary judgment order, the Court held that a collection of names could be eligible for copyright protection:

In finding that the names of the various items appearing in the disputed API package specifications are not protected by copyright, this order does not foreclose the possibility that the selection or arrangement of those names is subject to copyright protection. See Lamps Plus, Inc. v. Seattle Lighting Fixture Co., 345 F.3d 1140, 1147 (9th Cir. 2003) ("[A] combination of unprotectable elements is eligible for copyright protection only if those elements are numerous enough and their selection and arrangement original enough that their combination constitutes an original work of authorship.") (emphasis added).
(ECF No. 433 at 8.) By including only the first part and not the second, Google's proposal will mislead the jury.

Oracle will be arguing at trial that the selection, structure, and organization of thousands of names in the APIs and class libraries are protected by copyright and that Google copied them. The first is a legal issue; the second is a fact that Google has admitted. It would be prejudicial error to simply instruct the jury that "the names are not protected by copyright," which risks being

3


misinterpreted to apply to the selection and arrangement of the names. The proposal is also prejudicial because it refers to the APIs as the "Java language APIs." That is not how Oracle describes the APIs. It is a term of Google's invention to try to link the APIs to the language. But Google has conclusively admitted that the APIs and class libraries are not part of the language.

Second, Google's proposal is a statement of law, and not a statement of fact. That Google cites no Oracle statement in its brief (ECF No. 861 at 2-3) is conclusive: it is not an admitted fact. The Court will ultimately determine what legal principles are relevant to the jury's deliberations and the proper expression of those principles in jury instructions. And because the instructions will focus on the claims that are presented to the jury, it is unlikely that Google's proposal — which addresses a claim that the Court has ruled out of the case (subject to appeal) — will be a proper subject of instruction.

C. Google's Third Proposal — "Aside from a nine-line function that
Oracle accuses Google of copying, Oracle does not contend that
Android's source code in any of the accused APIs was copied from the
source code used in the Java platforms" — Is Inaccurate and
Argumentative
Google's third issue is contested as well as wrong. First, the evidence will show that Google copied thirteen lines, because Google copied comments as well as functional code.

Second, Google engineers consulted Oracle's API specifications and source code when working on Android. The jury could well find that the Android source code was copied from Oracle source code. Google admits that Android has the same API elements and the same structure, selection, and arrangement of them as Java does:

THE COURT: Which part is the same?

MR. KWUN: What's known as the declaration or the method signature, which is the part at the top. Actually, in there there might be some very, very slight differences. But for present purpose we can say they are the same.

(3/28/12 Hr'g Tr. at 40:16-20.)

THE COURT: So, as I understand you, you concede that, at least as to these 37 APIs, you do use the same structure, selection, and arrangement?

MR. KWUN: Yes, Your Honor.

4


(Id. at 49:23-50:1.) Google may well have lifted the API elements and their structure, selection, and arrangement from Oracle's source code, which it demonstrably had access to.

Oracle did not admit that except for "nine lines" there was no source code copying. Quite the opposite, in fact:

THE COURT: Pose to both sides this question. And you answer it first since you're already here. Except for rangeCheck, the APIs that you have, the 37 APIs in Android compared to the 37 analogs in Java, have different source code. True?

MR. KWUN: Yes, Your Honor.

THE COURT: Let me stop there. Agreed?

MR. JACOBS: Yes and no, Your Honor.

THE COURT: Okay. Explain that part.

MR. JACOBS: The part that closely corresponds to the words and symbols that are set forth in a specification aligns word for word.

THE COURT: I'm just talking -- I'm only talking about the source code that gets compiled by the computer --

MR. JACOBS: Yes.

THE COURT: -- at this point. So you're saying it's yes and no.

MR. JACOBS: Because there is some code that literally you can line up word for word in that code, in that source code, the noncomment source code, the compiled source code, you can line up those words with the corresponding words in what we're calling the specification.

(Id. at 38:22-39:18 (emphasis added).) At the hearing, Oracle stated that because Google's source code and Oracle's source code contain the same language, "word for word," the source code is, in part, the same. Moreover, the selection, arrangement, and structure of the APIs that Google admitted copying could have been copied from Oracle's source code. So the wording of Google's proposal — "Oracle does not contend that Android's source code in any of the accused APIs was copied from the source code used in the Java platforms" — is inaccurate. It is also argumentative, as it is based on Google's argument that the API declarations are uncopyrightable. (ECF No. 861 at 5:5.) The Court should reject Google's third proposal.

5


Dated: April 9, 2012

MORRISON & FOERSTER LLP

By: /s/ Michael A. Jacobs

Attorneys for Plaintiff
ORACLE AMERICA, INC.

6



884

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 (DMR)

STIPULATION AND [PROPOSED]
ORDER REGARDING TRIAL
PROCEDURES

Dept.: Courtroom 9, 19th Floor
Judge: Honorable William H. Alsup


STIPULATION

WHEREAS, the parties have continued to meet and confer in advance of trial and have reached agreement regarding certain trial procedures; and

WHEREAS, the Court’s April 2, 2012 Order regarding rolling witness lists (Dkt. No. 851) permits the parties to change the limit of seven witnesses by written agreement;

NOW THEREFORE THE PARTIES HEREBY STIPULATE AND AGREE as follows:

I. TRIAL PROCEDURES

The parties agree to the following procedures for purposes of trial:

1. The rolling witness lists contemplated in the Court’s April 2, 2012 Order (Dkt. No. 851) shall include ten (10) names (or the total of the remaining witnesses that the party has a good faith expectation to call in the event that the party does not expect to call ten more witnesses).

2. The parties shall exchange their initial rolling witness lists by 5:00 PM (Pacific) on Monday, April 9, 2012. The parties shall exchange any modifications to their initial rolling witness lists by 5:00 PM (Pacific) on Tuesday, April 10, 2012. Subsequent rolling witness lists shall be exchanged as specified in the Court’s April 2, 2012 Order (Dkt. No. 851).

3. For motions filed during trial, the parties agree to advance the timing set forth in the Court’s Order (Dkt. No. 835) as follows:

  • The moving party shall provide the other party with written notice of intent to file a motion (which notice shall include the relief to be sought and a general description of the subject matter and basis for the motion) by 3 PM (Pacific) on the day the motion is to be filed.
  • The moving party shall file its motion no later than 6 PM (Pacific) the same day.
  • The opposing party shall file its response no later than 10 PM (Pacific) the same day.
4. The parties shall exchange materials to be shown the jury during Phase One opening statements no later than 4 PM (Pacific) on Saturday, April 14, 2012. Written objections, if any, to the opposing party’s materials shall be exchanged by 1 PM (Pacific) on Sunday,

1


April 15, 2012. The parties shall meet and confer regarding any objections by 4 PM (Pacific) on April 15, 2012.

ORDER

The foregoing stipulation is approved, and IT IS SO ORDERED.

Date: _________________________

______________________________ Honorable William Alsup
Judge of the United States District Court

2


Dated: April 9, 2012

MORRISON & FOERSTER LLP

By: /s/ Daniel P. Muino

MORRISON & FOERSTER LLP
MICHAEL A. JACOBS (Bar No. 111664)
[email]
KENNETH A. KUWAYTI (Bar No. 145384)
[email]
MARC DAVID PETERS (Bar No. 211725)
[email]
DANIEL P. MUINO (Bar No. 209624)
[email]
[address]
[phone]
[fax]

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

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

Attorneys for Plaintiff ORACLE AMERICA, INC.

3


Dated: April 9, 2012

KEKER & VAN NEST, LLP

By: /s/ Christa M. Anderson

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

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]

Attorneys for Defendant
GOOGLE INC.

4


ATTESTATION

I, Daniel P. Muino, am the ECF User whose ID and password are being used to file this STIPULATION AND [PROPOSED] ORDER REGARDING TRIAL PROCEDURES. In compliance with General Order 45, X.B., I hereby attest that Christa M. Anderson has concurred in this filing.

Date: April 9, 2012

/s/ Daniel P. Muino

5



885

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 (DMR)

PARTIES’ JOINT TIMELINE

Dept.: Courtroom 9, 19th Floor
Judge: Honorable William H. Alsup


Pursuant to this Court’s Order (Dkt. 843), Oracle America, Inc. and Google Inc. jointly submit this list of agreed timeline entries. The parties are working to prepare the timeline itself to be presented to the jury and will submit it as soon as possible.

Timeline:

June 1991: Sun begins Oak project, which evolves into Java

December 1992: Sun applies for ’685 patent, which is later reissued as ’104 patent

January 1996: Sun release Java platform, v. 1.0.2.

May 9, 2000: PTO issues ’520 patent assigned to Sun

April 29, 2003: PTO issues ’104 patent assigned to Sun

October 2003: Andy Rubin starts Android, Inc.

September 2004: Sun releases Java 2 Standard Edition, v. 5.0

December 2004: Certificate of Copyright Registration issued to Sun for Java 2 Standard Edition, v. 5.0

July/August 2005: Google acquires Android, Inc.

November 2007: Google releases Android Software Development Kit

October 2008: Google releases Android platform

October 2008: HTC releases HTC Dream, first Android phone

January 2010: Oracle acquires Sun

August 2010: Oracle files Complaint against Google

1


Dated: April 9, 2012

MORRISON & FOERSTER LLP

By: /s/ Daniel P. Muino

MORRISON & FOERSTER LLP
MICHAEL A. JACOBS (Bar No. 111664)
[email]
KENNETH A. KUWAYTI (Bar No. 145384)
[email]
MARC DAVID PETERS (Bar No. 211725)
[email]
DANIEL P. MUINO (Bar No. 209624)
[email]
[address]
[phone]
[fax]

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

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

Attorneys for Plaintiff ORACLE AMERICA, INC.

2


Dated: April 9, 2012

KEKER & VAN NEST, LLP

By: /s/ Christa M. Anderson

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

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]

Attorneys for Defendant
GOOGLE INC.

3


ATTESTATION

I, Daniel P. Muino, am the ECF User whose ID and password are being used to file this SECOND SUPPLEMENTAL JOINT PRETRIAL CONFERENCE STATEMENT. In compliance with General Order 45, X.B., I hereby attest that Christina M. Anderson has concurred in this filing.

Date: April 9, 2012

/s/ Daniel P. Muino

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887

KEKER & VAN NEST LLP
ROBERT A. VAN NEST - #84065
[email]
CHRISTA M. ANDERSON - #184325
[email]
MICHAEL S. KWUN - #198945
[email address telephone fax]

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

KING & SPALDING LLP
DONALD F. ZIMMER, JR. - #112279
[email]
CHERYL A. SABNIS - #224323
[email address telephone fax]

IAN C. BALLON - #141819
[email]
HEATHER MEEKER - #172148
[email]
GREENBERG TRAURIG, LLP
[address telephone fax]

Attorneys for Defendant
GOOGLE INC.

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
SAN FRANCISCO DIVISION

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

Case No. 3:10-CV-03561-WHA

GOOGLE'S SUPPLEMENTAL
COPYRIGHT LIABILITY TRIAL BRIEF
PURSUANT TO MARCH 26, 2012 ORDER

Judge: Hon. William Alsup


The Court has asked Google to address Oracle's contentions regarding an alleged field-of-use restriction and its purported applicability to the Apache Harmony project. As explained below, the Apache Software Foundation ("Apache") licenses Apache Harmony to the public without any field-of-use restrictions, and rejected Sun's attempt to impose such a limit on the use of Apache Harmony. Notwithstanding these facts, Sun has never sued Apache, and has never asserted that the use of the Apache Harmony libraries is conditioned on a field-of-use limitation. To the contrary, Jonathan Schwartz, Sun's CEO at the relevant times, has testified that Apache Harmony can be used for any purpose so long as the resulting product is not called "Java." There is no field-of-use restriction on the use of Apache Harmony. Oracle's field-of-use restriction argument is a red herring.

I. The Apache Harmony project was launched in August 2005, and licensed without
any field-of-use restrictions.

In August 2005, Apache announced the Apache Harmony project, the goal of which was to create an open-source product compatible with J2SE. This project followed open-source efforts by other groups to achieve the same goal, such as GNU Classpath from the Free Software Foundation. Apache licenses Apache Harmony to the public for free under version 2 of the open source Apache License. This license does not have any field-of-use restrictions.1

II. Apache never agreed to a field-of-use restriction, and Sun never objected to the use
by Apache and others of the Hava language APIs.

Jonathan Schwartz, Sun's CEO from 2006 to 2010, testified that, absent a desire by Apache to call its Apache Harmony product “Java,” Apache was free to offer its implementation of the Java language APIs for free, and others were free to use those implementations:

Q. Were you generally familiar with how the Apache Harmony product worked?

A. Yes.

. . .

Q. And based on your understanding, as long as users did not call their

__________________________________

1 See, Apache License, Version 2.0, available at http://www.apache.org/licenses/LICENSE-2.0.html. Version 2. of the General Public License, the open source license that governs use of GNU Classpath, similarly has no field0of0use restriction. See General Public License, Version 2.0, available at http://www.gnu.org/licenses/gpl-2.0.html.

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products Java, they were free to use the source code that Apache Harmony made available?

A. Yes.

Schwartz Dep. at 49:11-50:10; see also id at 47:17-23 (“It’s a free world. . . . If they called it Java, we would be involved. If they didn’t call it Java, then they could call it a Linux phone, they could call it a free phone or an open phone, that’s up to them.”). However, "In order to call your product Java, and in order to feature to the marketplace that you were a Java phone or a Java device and to get that brand, you needed to pass that the -- the TCKs, the Testing [sic] Compatibility Kits." Id. at 46:17-21.

Starting in August 2006, Apache attempted to obtain from Sun a license to the J2SE 5.0 technology compatibility kit ("TCK"). The license to the TCK (i.e., to the suite of compatibility tests) that Sun offered to Apache would have limited the use of Apache Harmony to certain fields of use. Apache, however, never agreed to such a limitation.

In May 2007, with no TCK license in place for Apache Harmony, Schwartz publicly stated, "there is no reason that Apache cannot ship Harmony today." Trial Ex. 2341; Schwartz Depl. at 51:15-22. According to Schwartz, however, Apache, "wanted, in fact, to be able to call Harmony Java. And we held firm and said no, that's our core value. If you want to call it Java, you can pay, you know, the fee to go run the test and compatibility kits, and that enable you to tell your customers that you actually had a licensed Java runtime. But absent that statement, they, you know, couldn't say that, and they were frustrated by it." Schwartz Dep. at 52:16-23.

In June 2007, Apache wrote an open letter to Sun, requesting a TCK license without a field-of-use restriction. That same month, in an effort spearheaded by Oracle Corporation, twelve signatories, including a Google Engineering VP, urged Schwartz to grant Apache an unencumbered TCK license. See Trial Ex. 2347. Sun, however, refused. Because Apache was unwilling to agree any field-of-use restriction, it did not license the TCK. As a result, Apache did not agree to -- and never has agreed to -- a field-of-use limitation for Apache Harmony.

The lack of a TCK license, however, did not prevent others from use Apache Harmony:

Q. Now I take it they could already use the Apache Harmony code for free; correct?

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A. Yes.

Q. And they could put that in a commercial product and sell it?

A. Yes.

. . .

Q. The one thing they couldn’t do was call it Sun [sic]?

A. They could not call it Java.

Schwartz Dep. at 83:15-84:7. Even without at TCK license, "[a]nybody else who wanted to go create their own runtime, whether it was Apache Harmony or GNU Classpath, was free to do so; they just couldn't call it Java." Id. at 182:2-5. Mr. Schwartz will testify that commercial products from IBM and Hewlett-Packard used the Apache Harmony implementation fo the Java language APIs without objection from Sun.

III. There is no field-of-use restriction for Apache Harmony.

The dispute between Apache and Sun was about branding, and the ability to say that Apache Harmony is Java compatible. The end result was that Apache did not agree to a field-of-use restriction. Notwithstanding Apache's refusal to limit the field of use for Apache Harmony, Sun never sued Apache. In fact, Sun's CEO has testified that anyone can use the Apache Harmony code (and thus its implementation of the Java language API specifications) -- so long as it does not call its product "Java."

Finally, Google in any event does not call Android "Java." Google has used the term "Java" in its nominative, non-brand sense to describe, for example, how developers can use the free and open Java programming language to write applications for the Android platform. That, however, is not an attempt to brand the Android product "Java." Indeed, Oracle's complaint does not include a trademark infringement count. Oracle's field-of-use restriction argument is irrelevant and should be rejected.

Dated: March 27, 2012

KEKER & VAN NEXT LLP

/s/Robert A. Van Nest
By: ROBERT A. VAN NEST

Attorneys for Defendant
GOOGLE INC.

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