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To read comments to this article, go here
Oracle v. Google - Neither Party Giving Up the Fight on Copyright Liability Even as they Prepare for Phase II ~mw
Thursday, May 03 2012 @ 10:00 AM EDT

Sometimes it seems like the counsel for the respective parties have too much time on their hands. I'm sure this is not the case from their perspective, but when you see Oracle once again raise and challenge a settled issue, you have to wonder.

In this instance it is the evidence pertaining to the financial information covering Google's cost of developing Android. Oracle again challenges the reliance of Dr. Kearl (the court-appointed damages expert) on information contained in the report of Dr. Cox (the Google damages expert) regarding those expenses and how it has been introduced. (1037 [PDF; Text]) Specifically, Oracle claims Andy Rubin does not know what brand of accounting software Google uses and did not tally up Google's cost items himself.

Google's response: Balderdash! (1041 [PDF; Text]) As Google asserts, adequate foundation for the expenses was provided in Rubin's testimony, and the Court indicated this was sufficient.

The parties are also arguing over whether and where the term "specification" is defined in the JAVA 2 PLATFORM STANDARD EDITION DEVELOPMENT KIT 5.0 Specification license (Trial Exhibit (TX) 610.1). Oracle says the title of the license provides the definition. (1051 [PDF; Text]) Oracle also points to TX610.2 for support (and a less circular definition). Google, for its part, argues that TX610.1 (and for that matter, TX610.2) are licenses for the specification to the entire development kit, not just the APIs at issue. (1052 [PDF; Text] Google admits that the API specifications would likely have been among the things included in these licenses, but that the licenses extended to everything in Java, including the virtual machine. It's a little hard to see how that argument actually helps Google, e.g., while the license wasn't limited to the API specifications, they were included. The more significant argument Google advances is that there is no evidence on the record that anyone at Google ever saw TX610.1 or TX610.2, and it is this license that imposes the field of use limitations with respect to mobile devices. This is a relatively minor skirmish, but it does have implications on the larger copyright liability case.

Each of the parties has now submitted its brief in support of their respective motions for judgment as a matter of law on the copyright liability phase:

(GOOGLE’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF
SECOND MOTION FOR JUDGMENT AS A MATTER OF LAW ON COUNT VIII OF ORACLE’S AMENDED COMPLAINT
[PDF; Text])

(ORACLE AMERICA, INC.’S CORRECTED RULE 50(A) MOTION AT THE CLOSE OF ALL EVIDENCE [PDF; text to follow])

Don't hold your breath for Judge Alsup to grant either one of these. Given the length of the jury deliberations and the questions for which the jury has sought clarification, it would appear that the jury is likely to find at least some degree of infringement. The only question then is whether they have found such infringement to be excused. If that is, in fact, the case, the Court is unlikely to overrule the jury on those factual findings. However, there are certain issues of law that the Court has yet to settle, electing to wait for the jury to settle the factual issues first, and that (in addition to preserving issues for appeal) that the parties are focused on. Each party has also submitted their respective proposed findings of fact and conclusions of law with respect to copyright liability:

Google - (1047 [PDF; text to follow])

Oracle - Google - (1049 [PDF; text to follow])

These are concise statements of all the arguments each party has made to this point, and they are worth a read.

Preparations are underway to start Phase 2 of the trial, but Judge Alsup requested (1050 [PDF; Text]) and the parties have agreed (1053 [PDF; Text]) that, even if the jury returns a verdict on copyright liability today, the second phase will not begin until next Monday, giving the jurors a brief respite.

Related to the commencement of Phase II, Google has updated its current lineup of witnesses. (1035 [PDF; Text]) No surprises there.


***********

Docket

05/01/2012 - 1034 - ORDER DENYING MOTION TO SEAL by Hon. William Alsup [denying 920 Administrative Motion to File Under Seal].(whasec, COURT STAFF) (Filed on 5/1/2012) (Entered: 05/01/2012)

05/01/2012 - 1035 - Witness List by Google Inc. GOOGLE INC.'S ROLLING LIST OF NEXT TEN WITNESSES. (Van Nest, Robert) (Filed on 5/1/2012) (Entered: 05/01/2012)

05/01/2012 - 1036 - Administrative Motion to File Under Seal Oracle's Motion to Exclude Portions of Kearl Report filed by Oracle America, Inc.. (Holtzman, Steven) (Filed on 5/1/2012) (Entered: 05/01/2012)

05/01/2012 - 1037 - MOTION to Strike ORACLE AMERICA, INC.S MOTION TO EXCLUDE PORTIONS OF THE RULE 706 EXPERT REPORT OF DR. JAMES KEARL filed by Oracle America, Inc.. Responses due by 5/15/2012. Replies due by 5/22/2012. (Attachments: # 1 Declaration)(Holtzman, Steven) (Filed on 5/1/2012) (Entered: 05/01/2012)

05/01/2012 - 1038 - AFFIDAVIT re 1037 MOTION to Strike ORACLE AMERICA, INC.S MOTION TO EXCLUDE PORTIONS OF THE RULE 706 EXPERT REPORT OF DR. JAMES KEARL [CORRECTED] DECLARATION OF MEREDITH DEARBORN IN SUPPORT OF ORACLE AMERICA, INC.S MOTION TO EXCLUDE PORTIONS OF THE RULE 706 EXPERT REPORT OF DR. JAMES KEARL by Oracle America, Inc.. (Holtzman, Steven) (Filed on 5/1/2012) (Entered: 05/01/2012)

05/01/2012 - 1039 - Administrative Motion to File Under Seal filed by Google Inc.. (Attachments: # 1 Proposed Order)(Van Nest, Robert) (Filed on 5/1/2012) (Entered: 05/01/2012)

05/01/2012 - 1040 - Declaration of David Zimmer in Support of 1039 Administrative Motion to File Under Seal Portions of Google's Opposition to Oracle's Renewed Motion to Strike Portions of Dr. James Kearl's Expert Report filed byGoogle Inc.. (Related document(s) 1039 ) (Van Nest, Robert) (Filed on 5/1/2012) (Entered: 05/01/2012)

05/01/2012 - 1041 - RESPONSE (re 1037 MOTION to Strike ORACLE AMERICA, INC.S MOTION TO EXCLUDE PORTIONS OF THE RULE 706 EXPERT REPORT OF DR. JAMES KEARL ) Google Inc.'s Opposition to Oracle America, Inc.'s Renewed Motion to Strike Portions of Dr. James Kearl's Expert Report filed byGoogle Inc.. (Van Nest, Robert) (Filed on 5/1/2012) (Entered: 05/01/2012)

05/01/2012 - 1042 - Declaration of Daniel Purcell in Support of 1041 Opposition/Response to Motion, filed byGoogle Inc.. (Attachments: # 1 Exhibit A)(Related document(s) 1041 ) (Van Nest, Robert) (Filed on 5/1/2012) (Entered: 05/01/2012)

05/01/2012 - 1043 - Brief re 1007 Second MOTION for Judgment as a Matter of Law on Sections of Count VIII of Oracle's Amended Complaint GOOGLE'S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF SECOND MOTION FOR JUDGMENT AS A MATTER OF LAW ON COUNT VIII OF ORACLE'S AMENDED COMPLAINT filed byGoogle Inc.. (Related document(s) 1007 ) (Van Nest, Robert) (Filed on 5/1/2012) (Entered: 05/01/2012)

05/02/2012 - 1044 - MOTION for Judgment as a Matter of Law Oracle's Rule 50(A) Motion at the Close of All Evidence filed by Oracle America, Inc.. Responses due by 5/5/2012. (Jacobs, Michael) (Filed on 5/2/2012) (Entered: 05/02/2012)

05/02/2012 - 1045 - MOTION for Judgment as a Matter of Law Oracle's Corrected Rule 50(A) Motion at the Close of Evidence (WITH TABLES) filed by Oracle America, Inc.. Responses due by 5/5/2012. (Jacobs, Michael) (Filed on 5/2/2012) (Entered: 05/02/2012)

05/02/2012 - 1046 - Declaration of MEREDITH DEARBORN in Support of 1037 MOTION to Strike ORACLE AMERICA, INC.S MOTION TO EXCLUDE PORTIONS OF THE RULE 706 EXPERT REPORT OF DR. JAMES KEARL [CORRECTED] filed by Oracle America, Inc.. (Attachments: # 1 Exhibit A-B)(Related document(s) 1037 ) (Holtzman, Steven) (Filed on 5/2/2012) (Entered: 05/02/2012)

05/02/2012 - 1047 - Proposed Findings of Fact by Google Inc. (Attachments: # 1 Exhibit A)(Van Nest, Robert) (Filed on 5/2/2012) (Entered: 05/02/2012)

05/02/2012 - 1048 - Proposed Findings of Fact by Oracle America, Inc.. (Holtzman, Steven) (Filed on 5/2/2012) (Entered: 05/02/2012)

05/02/2012 - 1049 - Proposed Findings of Fact by Oracle America, Inc.. (Holtzman, Steven) (Filed on 5/2/2012) (Entered: 05/02/2012)

05/02/2012 - 1050 - NOTICE RE SECOND PHASE OF TRIAL. Signed by Judge William Alsup on 5/2/2012. (whasec, COURT STAFF) (Filed on 5/2/2012) (Entered: 05/02/2012)

05/02/2012 - 1051 - Statement Oracle Statement Regarding J2SE 5.0 Specification License (TX610.1) by Oracle America, Inc.. (Jacobs, Michael) (Filed on 5/2/2012) (Entered: 05/02/2012)

05/02/2012 - 1052 - Statement Regarding Trial Exhibit 610.1 by Google Inc.. (Van Nest, Robert) (Filed on 5/2/2012) (Entered: 05/02/2012)

05/02/2012 - 1053 - RESPONSE to re 1050 Order Joint Reponse to Notice Re Second Phase of Trial by Google Inc., Oracle America, Inc.. (Peters, Marc) (Filed on 5/2/2012) (Entered: 05/02/2012)


***********

Documents

1035

KEKER & VAN NEST LLP
ROBERT A. VAN NEST - # 84065
[email]
CHRISTA M. ANDERSON - # 184325
[email]
DANIEL PURCELL - # 191424
[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 INC.’S ROLLING LIST OF
NEXT TEN WITNESSES

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

Pursuant to the Court’s Order regarding rolling lists of witnesses (Dkt. No. 851) and the parties’ agreement to increase the number of witnesses on the list to ten (Dkt. No. 884), Google Inc. hereby files and serves its current list of anticipated next ten trial witnesses:

1. David August
2. Patrick Brady
3. Safra Catz
4. Alan Eustace
5. Hiroshi Lockheimer
6. Andy McFadden
7. Terence Parr
8. Noel Poore
9. Jonathan Schwartz
10. Hinkmond Wong
Dated: May 1, 2012

KEKER & VAN NEST LLP

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

Attorneys for Defendant
GOOGLE INC.

1



1037

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]

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

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 AMERICA, INC.’S MOTION TO
EXCLUDE PORTIONS OF THE RULE 706
EXPERT REPORT OF DR. JAMES
KEARL

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


NOTICE OF MOTION AND MOTION TO STRIKE

PLEASE TAKE NOTICE that Plaintiff Oracle America, Inc. (“Oracle”) hereby moves to exclude portions of the opinions and testimony of the court-appointed Rule 706 expert Dr. James Kearl. This motion is based on the following memorandum of points and authorities, the declaration of Meredith Dearborn and accompanying exhibits, the entire record in this matter, and on such evidence as may be presented at any hearing on this Motion, on a date to be determined by the Court, as well as any other ground the Court deems just and proper.

Dated: May 1, 2012

STEVEN C. HOLTZMAN

By: /s/Steven C. Holtzman
Steven C. Holtzman

Attorneys for Plaintiff
ORACLE AMERICA, INC.


MEMORANDUM OF POINTS AND AUTHORITIES

I. INTRODUCTION

Oracle moves again to strike one aspect of Dr. James Kearl’s infringer’s profits analysis: the accounting for and deduction of Google’s Android expenses, as derived from the opinion of Google’s copyright damages expert, Dr. Alan Cox. This motion follows this Court’s previous order granting in part and denying in part Oracle’s Daubert Motion Against Dr. Kearl and providing Google with an opportunity to remedy the defect underlying the previous report. (Dkt. No. 891).

In its original April 2, 2012 motion to strike this aspect of Dr. Kearl’s opinion (Dkt. No. 850, at 1), Oracle argued, and the Court accepted, that Dr. Kearl “used figures for Android-related expenses from Google’s expert Dr. Alan Cox’s October 2011 damages report” and that those figures were from an “Android Profit-and-Loss Statement.” (April 10, 2012 Order, Dkt. No. 891, at 4.) Dr. Kearl relies on Dr. Cox, who relies on a P&L statement that does not, on its face, establish that the costs it itemizes are properly attributed to Android or that they are “deductible expenses” within the meaning of 17 U.S.C. § 504. Dr. Cox, in turn, “did not conduct an independent audit of the P&L statement to determine its reliability” but instead “relied on interviews of Aditya Agarwal, a senior financial analyst at Google.” (Id.) As stated in our previous motion (Dkt. 850), however, Mr. Agarwal was unable to explain the methodologies underlying that P&L statement when he testified as Google’s Rule 30(b)(6) witness on “how Google accounts for Android-related revenues and expenses” in April 2011. (Dkt. 850 Ex. B (Agarwal Dep.) at 51:1-17.) Moreover, Mr. Agarwal was not on Google’s trial witness list and thus was precluded from giving testimony at trial to establish the foundation for how Google accounts for Android expenses.

Based on these facts, the Court denied Oracle’s motion without prejudice and ordered Google to provide a supplemental report “revising only the foundational interviewee(s) for the P&L statements” and also ordered Google to provide Oracle with an opportunity to depose the interviewee. (Order at 7.)

On April 16, 2011, Google provided Oracle with a “supplement report” by Dr. Cox, redlined to show that Dr. Cox had simply substituted the name “Rubin” for “Agarwal” in three places. (See Declaration of Meredith Dearborn (“Dearborn Decl.”) Ex. A (Supp. Expert Rep. of Dr. Alan J. Cox) at 32 n.117, 41, 42.) Mr. Rubin appeared for deposition on Friday, April 27, 2012.

1


Mr. Rubin’s testimony suffers from the same defects as Mr. Agarwal’s: Mr. Rubin is unable to testify as to how Google allocates expenses for Android as reflected on the Android P&L, and unable to ascertain which expenses, if any, are directly attributable to the infringement. Consequently, Dr. Kearl still cannot offer testimony on Android costs that rest on anything more than Google’s expert’s unfounded assumption. Accordingly, pursuant to Federal Rules of Evidence 702, 703, and 403, Oracle moves to strike this single aspect of Dr. Kearl’s testimony.

II. ARGUMENT

A. Google bears the burden to show that the costs it claims should be deducted
from its infringer’s profits actually contributed to Android’s profits.
In calculating infringer’s profits as a measure of copyright damages, Oracle must “present proof only of the infringer’s gross revenue, and the infringer is required to prove his or her deductible expenses and the elements of profit attributable to factors other than the copyrighted work.” 17 U.S.C. § 504(b). Google therefore has the statutory burden of proof to show its deductible costs. See Frank Music Corp. v. Metro-Goldwyn-Mayer, Inc., 772 F.2d 505, 514 (9th Cir. 1985) (“Any doubt as to the computation of costs or profits is to be resolved in favor of the plaintiff. . . . If the infringing defendant does not meet its burden of proving costs, the gross figure stands as the defendant’s profits.”) (citation omitted); see also Taylor v. Meirick, 712 F.2d 1112, 1121–22 (7th Cir. 1983) (“It is too much to ask a plaintiff who has proved infringement also to do the defendant’s cost accounting.”).

Google may only deduct costs that “actually contributed to sales of the infringing work.” Frank Music, 772 F.2d at 516.1 Before deducting any category of costs from the raw revenue, a defendant must offer evidence showing how the costs contributed to the production of the infringing work.

In Frank Music, the defendant, MGM, introduced evidence at trial that segregated overhead expenses into general categories, such as general and administrative costs, sales and advertising, and engineering and maintenance. MGM then allocated a portion of these costs to the production of the infringing show, Hallelujah Hollywood, based on a ratio of the revenues from that production as compared to MGM Grand's total revenues. Id. The district court adopted the defendant’s approach, but

________________________________

1 Although Frank Music construed an earlier version of the Copyright Act, Congress’s amendments do not affect these holdings. Later cases have continued to rely on Frank Music for this proposition. See, e.g., Folkens v. Wyland, C-01-1241 EDL, 2002 WL 1677708, at *6 (N.D. Cal. July 22, 2002).

2


the Ninth Circuit reversed, holding that the district court’s finding that MGM had established that its overhead contributed to the infringing show was clear error.

The court noted that settled law permitted a deduction for overhead only “when the infringer can demonstrate that [the overhead expense] was of actual assistance in the production, distribution or sale of the infringing product.” Id. (citing Kamar Int’l, Inc. v. Russ Berrie & Co., 752 F.2d 1326, 1332 (9th Cir. 1984) and Sheldon v. Metro-Goldwyn-Mayer Pictures, Co., 106 F.2d 45, 54 (2d Cir. 1939), aff'd, 309 U.S. 390 (1940)). Although the infringer need not “prove his overhead expenses and their relationship to the infringing production in minute detail,” the defendant nonetheless “bears the burden of explaining, at least in general terms, how claimed overhead actually contributed to the production of the infringing work.” Frank Music, 772 F.2d at 516. On the facts before it, although it did not doubt that “some of defendants’ claimed overhead contributed to the production of Hallelujah Hollywood,” the Court held that the defendants had

offered no evidence of what costs were included in general categories such as ‘general and administrative expenses,’ nor did they offer any evidence concerning how these costs contributed to the production of Hallelujah Hollywood. The defendants contend their burden was met when they introduced evidence of their total overhead costs allocated on a reasonable basis. The district court apparently agreed with this approach. That is not the law of this circuit. Under Kamar International, a defendant additionally must show that the categories of overhead actually contributed to sales of the infringing work. 752 F.2d at 1332. We can find no such showing in the record before us.
Id. Here, therefore, Google bears the burden of demonstrating not just that Google incurred expenses in developing Android, but that those expenses are “deductible” under 17 U.S.C. § 504 in that they actually contributed to the realization of Android profits. Nothing in the P&L statements cited by Dr. Cox, or in Mr. Rubin’s testimony, allows Dr. Cox or Dr. Kearl to express an opinion that would meet that burden.

[REDACTED]
[REDACTED]
B. Mr. Rubin was not competent to testify to the “foundational facts” on which Dr.
Cox and Dr. Kearl ultimately rely.
On April 15, 2012 Google served Oracle with a “supplement report” that consisted of another copy of the same Cox report with only three changes. Google substituted (1) the name “Andy Rubin” for “Aditya Agarwal” (Dearborn Decl. Ex. A at 32 n.117); (2) the name and title “Andy Rubin, Vice

3


President for Android” for “Aditya Agarwal, Senior Financial Analyst” (id. at 41); and (3) “Mr. Rubin” for “Mr. Agarwal” (id. at 42).

At his deposition, Mr. Rubin revealed that he had limited knowledge, and in significant cases, no knowledge, of the facts necessary to determine whether the Android P&L accurately reflects Google’s deductible expenses under 17 U.S.C. § 504. Mr. Rubin testified that:

[REDACTED]
Despite the fact that Google offered Mr. Rubin as the witness who would establish the accuracy of the P&L statement and the allocation of Android expenses, he testified repeatedly that he did not know because he is [REDACTED] Further, after he denied knowing the methodology underlying the P&L statement and was asked who could explain it, Mr. Rubin named Mr. Agarwal. (Id. 62:6-25.)

C. Dr. Cox did not in fact rely on any conversation with Mr. Rubin
Dr. Cox could not have actually relied on Mr. Rubin in creating his report. The conversation between Dr. Cox and Mr. Rubin did not include the factual assertions for which Dr. Cox supposedly “relied” on Mr. Rubin. Mr. Rubin testified that he and Dr. Cox[REDACTED]

4


for [REDACTED] He admitted that he had not discussed with Dr. Cox the few things that Dr. Cox had attributed to him in the “supplement” report. For example:

[REDACTED]
(Id. 10:20-11:3; compare Ex. A (Cox Report) at 32.) [REDACTED] ) Indeed, Mr. Rubin testified that he could not support that proposition, because as to the time period prior to 2008, [REDACTED] (Dearborn Decl. Ex. B (Rubin Dep.) at 11:16-18.)2

Similarly, Mr. Rubin testified:

REDACTED
_____________________________

2 Google may argue that it has dealt with this problem [REDACTED] (See, e.g., Ex. A (Cox Report), at 33 [REDACTED] ”) [REDACTED] Dr. Cox has disclosed nothing in this regard.

5


[REDACTED]
(Ex. B (Rubin Dep.) at 21:2-24; compare Ex. A (Cox Report), at 41.) [REDACTED]

And still further:

[REDACTED]
(Ex. B (Rubin Dep.) at 24:18-23; compare Ex. A (Cox Report) at 42) (“[REDACTED] ”); see also id. 23:5-13 ([REDACTED] ”). The only three topics for which Mr. Rubin is cited in Dr. Cox’s report were the three aforementioned points.

6


Thus, it is clear that Mr. Rubin (like Mr. Agarwal) did not and could not provide a basis for how Drs. Cox and Kearl calculated costs. Since Google has not provided a basis to support its claims regarding deductible costs for infringer’s profits, it cannot offer expert testimony on this point.

D. Neither the P&L Statement, Nor Mr. Rubin’s Testimony, Specifically Identifies
the Android Expenses that “Actually Contributed to the Production of the
Infringing Work”
Google is not entitled to deduct all Android expenses from its revenues to establish infringer’s profits. Rather, it may deduct only the expenses that “actually contributed to the production of the infringing work.” Frank Music, 772 F.2d at 516. Mr. Rubin’s deposition revealed that at least some of the expenses on the Android P&L were incurred for items that did not contribute to sales of the infringing work. For example, Mr. Rubin testified that [REDACTED] (E.g., Ex. B (Rubin Dep.) at 51:2-20.) Such expenses represent the cost of exploring alternatives to infringement, or alternative means of infringing, but cannot be said to contribute to the production of the infringing work. Similarly, the largest category of expense on the Android P&L is [REDACTED]t. (See TX 1079.) [REDACTED] (Ex. B (Rubin Dep.) at 46:5-12; 51:2-20.) Such expenses may belong on a P&L for the business unit, but they are not “deductible expenses” for purposes of copyright infringer’s profits. Frank Music, 772 F.2d at 516. It is impossible to determine from the P&L or from Mr. Rubin’s testimony which expenses should be so classified, or how large those expenses are.

III. CONCLUSION

The Court ordered Google to provide a foundational interviewee to support the analysis in the Kearl report. Google failed to do so. Consequently, the Court should prohibit Dr. Kearl from testifying as to the amount of Google’s cost deductions in his infringer’s profits analysis.

7


Dated: April 30, 2012

STEVEN C. HOLTZMAN

By: /s/Steven C. Holtzman
Steven C. Holtzman

Attorneys for Plaintiff
ORACLE AMERICA, INC.

8



1041

KEKER & VAN NEST LLP
ROBERT A. VAN NEST - # 84065
[email]
CHRISTA M. ANDERSON - # 184325
[email]
DANIEL PURCELL - # 191424
[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 INC.'S OPPOSITION TO
ORACLE AMERICA, INC.'S RENEWED
MOTION TO STRIKE PORTIONS OF DR.
JAMES KEARL'S EXPERT REPORT

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


Predictably, Oracle has renewed its demand for an [REDACTED] evidentiary gotcha, trying to preclude Google from offering any evidence of Android-related costs—this time because its designated trial witness on that subject, Android team head Andy Rubin, is purportedly not intimately familiar with every last detail of Google's accounting practices and did not add the numbers in Google's regularly-generated Android financial statements himself. There is nothing in copyright law or this Court's prior orders that imposes this sort of standard for admissibility of a business record. This motion is yet another request from Oracle for an evidentiary shortcut that would free it from the burden of having to try this case on its merits. The Court should deny it.

Oracle's new motion styles itself as a "renewal" of a prior motion, but it starts from a very different premise from its prior motion. Oracle's first motion to strike was based on a purported concern that Aditya Agarwal, the witness who had provided foundation for the opinion of Google's copyright damages expert Dr. Alan Cox, was not on Google's trial witness list. Google opposed the motion based on the fact that there were other qualified witnesses who could speak to the same subject matter. The Court agreed, and permitted Google to designate a new trial witness to testify on that subject. Apr. 10, 2012 Order [Dkt. 891] at 5-7. Google designated Rubin, who was deposed for three hours last Friday, April, 27, 2012. Now Oracle has "renewed" its motion based on a different argument, that Rubin cannot lay the required foundation for Android-related financial documents at trial, because he does not know what brand of accounting software Google uses and did not tally up Google's cost items himself.

First, the Court made clear multiple times in its prior order that the proper time, if any, for Oracle to renew its objection is during the testimony of Google's foundational witness "at trial." Apr. 10, 2012 Order [Dkt. 891) at 5 ("If the proper foundation is laid at trial," Dr. Cox may rely on Google's documentary evidence); id. at 7 (Oracle may renew its motion if Google's witness is unable "to lay the proper foundation at trial"). As the Court has already directed, Google must (and will) present Rubin to testify on these issues during the damages phase of this trial in order for Dr. Cox to rely on him at all. If Google fails to lay the necessary foundation for admission of its financial data during Rubin's direct examination, Oracle may renew its objection then. The fact that Oracle's copyright infringement claim is already in the hands of the jury, which may find

1


no liability (and thus no need to consider damages), is another reason why it would be premature to decide this motion now, as opposed to during the damages phase (if there is one).

Second, the Court made clear the extent of Google's obligation to lay foundation through Rubin, Apr. 10, 2012 Order [Dkt. 8911 at 5, and Rubin amply satisfied the Court's requirements. As the Court wrote, "If the proper foundation is laid at trial that" Google's evidence of Android-related costs "were 'routinely updated every quarter by Google in the ordinary course of business" and the figures therein accurately "encompass Android financial data" (Opp. at 2), then Dr. Cox can reasonably rely on those figures for calculating Android expenses." Id.

This is exactly what Rubin attested to at deposition:

Q. ... Is the accounting information that's reflected in the Android profit and loss document that's been marked Trial Exhibit 1079, is that routinely updated every quarter by Google?

A. It is. We do reports like this every quarter and they get given to me at the end of the quarter, when the reports are generated.

Q. And is it updated by your accounting department and reviewed by you in the ordinary course of business?

A. Yes, it is.

Q. On a regular basis?

A. Yes, quarterly.

Q. And does the information in Trial Exhibit 1079, the Android profit and loss information, accurately encompass Android's financial data for the time period shown in the documentation?

A. Yes, I believe so, to the—you know, for the time period shown absolutely. As I mentioned previously, before 2008 we didn't have procedures to generate these reports.

Declaration of Daniel Purcell in Opposition to Renewed Motion to Strike ("Purcell Decl.") Ex. A [REDACTED]

2


[REDACTED]

This testimony by itself is more than enough to lay a foundation for admitting the Google financial statements into evidence as a reasonable basis for expert testimony. But Rubin's testimony also provided additional specific details tying each cost category in the financial documents to Android specifically. He began by explaining the limits of his discussion with Dr. Cox, which involved "the cost associated with developing Android." Purcell Decl. Ex. A at 6:11- 12. He noted a couple of limitations in Google's accounting of costs. First, he explained that the financial documents did not include costs incurred prior to 2008, when Google did not track Android related costs specifically. Id. at 11:5-13. (This is a non-issue, because Dr. Cox excluded any pre-2008 Android costs from his analysis, even though those costs would likely be substantial, including two-and-a-half years of foundational engineering work on Android. Oct. 2, 2011 Cox Report at 33 ("I would also deduct the cost incurred by Google between July 11, 2005 and January 2008, but I understand that such separate accounting is not available.").) Second, Rubin testified that, although the Android financial reports should include only Android-specific data, there was an "odd chance" they could include some other costs. Id. at 11:5-12:9. Oracle's counsel didn't ask any questions to follow up on that point.

Rubin went on to explain the content of any of the line items on the financial documents related to Android that Oracle chose to ask about. Purcell Decl. Ex. A at 13:2-19 (explaining content [REDACTED]; id. at 18:13-21:1 (explaining that [REDACTED] ; id. at 23:14-8 (explaining [REDACTED]; id. at 24:25-26:20 (providing examples of fixed versus variable Android costs); id. at 29:5-15 (explaining [REDACTED] , id. at 46:24-47:25 (identifying [REDACTED] id. at 47:1-2 (identifying [REDACTED] ; id. at 47:3-6 (identifying [REDACTOMG; id. at 48:10-49:4 (discussing [REDACTED] id. at 51:2-20 (explaining that [REDACTED] .

3


This amply satisfied both the Court's order that Google lay a foundation for admitting its financial documents and Ninth Circuit law regarding deductible expenses related to an allegedly infringing product—which, in this case, is the entire Android platform. Under Ninth Circuit law, an accused copyright infringer does not have the burden to "prove his overhead expenses and their relationship to the infringing product in minute detail." Frank Music Corp. v. Metro- Goldwyn-Mayer, Inc., 772 F.2d 505, 516 (9th Cir. 1985). Instead, the infringer bears only "the burden of explaining, at least in general terms, how claimed overhead actually contributed to the production of the infringing work." Id. (emphasis added). As Google pointed out previously, the proof in Frank Music fell short because the infringer offered only evidence of general, companywide overhead expenses, and attributed a percentage of those to the infringing work, rather than providing a calculation of expenses specifically tied to the infringing work. See id. Here, Rubin made clear that the foundational documents were Android-specific and explained the relationship of each cost item to Android, to the extent Oracle asked him.

Oracle's specific objections to Rubin's testimony range from the bizarre—that he did not know "what accounting system is used to track Android expenses" or what specific person "at Google produces" the financial documents—to the incomprehensible—that he could not say "how Google divides overhead," whatever that means. Oracle Mot. at 4. As discussed already, Rubin testified that, to the best of Google's ability to determine, the financial statements collect Android related overhead only. Moreover, Oracle's complaint that Rubin could not vouch for pre-2008 Android costs is meaningless, because Dr. Cox excluded such costs from his analysis. Oracle admits Dr. Cox said so in his report. Oracle Mot. at 5 n.2 (Oct. 21, 2011 Cox Report at 33). In other words, Dr. Cox's analysis already leaves out a potentially massive category of Android-related costs because of the unavailability of specific supporting evidence. Oracle's response to this is to suggest that the 2008 Android numbers might actually include pre-2008 amounts. Of course, there is no evidence of this, and in any event Google would be entitled to claim any pre-2008 Android-related costs to the extent those could be identified. Rather than giving Google credit for using a conservative, evidence-based damages methodology that could only work in Oracle's favor, Oracle moves to strike it.

4


Oracle also complains that Dr. Cox could not actually have relied on anything Rubin said, because Rubin did not "discuss[ ] with Dr. Cox the few things that Dr. Cox had attributed to him." Oracle Mot. at 5. This is a hypertechnical objection that misses the entire point of the revised Cox report. Google revised Dr. Cox's report only to the extent permitted under the Court's April 10, 2012 order, which directed Google to "submit a supplement report revising only the foundational interviewee(s)" for the financial documents. Apr. 10, 2012 Order [Dkt. 891] at 7 (emphasis added). That was exactly what Google did—it substituted Rubin's name for Aditya Agarwal's and nothing more. The point of the revised report was not to represent to Oracle that, on the eve of trial, Google had arranged for Rubin to identically replicate each word of Agarwal's prior conversation with Dr. Cox; it was to give Oracle fair notice of which Google witness would be providing foundational testimony to support admissibility of the Google financial documents. If Oracle wants to object to Dr. Cox offering certain testimony at trial because Rubin did not provide foundational factual testimony to support it, that is one thing, but that should wait for trial. Rubin provided more than enough foundation to support admission of the financial documents as Google business records, and certainly to support Dr. Cox's reasonable reliance on them as part of the basis of his expert opinion. 1

Oracle's objection that Rubin cannot lay the required foundation is also misplaced in light of the Court allowing Oracle to call—on the very last day of the copyright trial—a witness who had never at any time in this case been on Oracle's witness list, Oracle copyright counsel Tiki Dare. Oracle called Dare for the specific purpose of admitting a purported Oracle business record establishing Oracle's registration of the asserted copyrighted work with the Copyright Office. RT

___________________________

1 Oracle also cites Frank Music in support of an argument that Google is not entitled to deduct its Android-related research-and-development costs unless those costs actually resulted in material that made it into the platform. Oracle Mot. at 7:6-21 (objecting to inclusion of "costs of 'investigations' that Google made into alternative ways to develop Android"). But there is nothing in Frank Music that puts such costs off-limits, and Oracle cites no other case. Part of developing a product is evaluating various options, some of which may prove to be blind alleysbut even blind alleys but may lead to insights that contribute to the final product anyway. Of course, no business tracks its expenses so minutely, and there is no way to disentangle these categories after the fact. To take the example of the musical revue in Frank Music, Oracle would argue that costs related to scenic or costume designs that did not make the final production, or to understudies who were never forced to take the stage, would be non-deductible. Such a limitation has no legal basis and would make no logical sense in light of obvious business realities.

5


2256:7-2267:2. The Court permitted two rounds of voir dire from Google's counsel that showed that Dare did not have personal knowledge of every fact related to creation of the business records at issue. Id. at 2260:9-2261:12, 2263:12-2264:14 (Dare). Eventually the Court admitted the contested evidence under the business records exception, but instructed the jury that it was up to them to decide how much weight they wanted to give Dare's testimony. Id. at 2267:3-23 (Dare). The Google financials present a similar situation, but, unlike Dare, Rubin at least would be in the position of testifying about business records created at Google for the Android business unit while he was in charge of that business unit and which he personally reviewed at the time of their creation. Dare was testifying about purported business records that were created by an outside law firm, not by Sun itself. Id. at 2260:20-2261:10 (Dare). Having argued for and won the admission of important foundational evidence in its case, Oracle is in no position to complain about Rubin's authentication of Android financials.

There is also no way to reconcile Oracle's motion with the Court's prior order or with the Ninth Circuit's opinion in Cream Records, Inc. v. Jos. Schlitz Brewing Co., 754 F.2d 826 (9th Cir. 1985), which the Court quoted at length in that order. Apr. 10, 2012 Order [Dkt. 891] at 6-7. There, in discussing the related issue of how specifically an infringer must prove the extent to which its profits are the result of non-infringing elements of its work, the court explained that

[W]here it is clear, as it is in this case, that not all of the profits are attributable to the infringing material, the copyright owner is not entitled to recover all those profits merely because the infringer fails to establish with certainty the portion attributable to the non-infringing elements. "In cases such as this where an infringer's profits are not entirely due to the infringement, and the evidence suggests some division which may rationally be used as a springboard it is the duty of the court to make some apportionment.

...

But we are resolved to avoid the one certainly unjust course of giving the plaintiffs everything, because defendants cannot with certainty compute their own share. In cases where plaintiffs fail to prove their damages exactly, we often make the best estimate we can, even though it is really no more than a guess, and under the guise of resolving all doubts against the defendants we will not deny the one fact that stands undoubted.

Id. (quoting Cream Records, 754 F.2d at 828-29). As the Court went on to note, even before the evidence came in during the copyright phase,

6


Here, it is clear that Android's gross revenue through 2011 was not entirely profit attributable to the allegedly infringing material. There were undoubtedly expenses that went into the development and marketing of Android. It would be unjust to hide these expenses from the jury.
Id. at 7.

Since the Court wrote those words three weeks ago, it has become even clearer, based on the testimony just elicited in the copyright trial, that Android's gross revenue through 2011 was not entirely (if at all) profit attributable to the structure, sequence, and organization ("SSO") of the 37 Java API packages at issue. As both parties' experts agreed, the SSO accounts for just 7,000 to 10,000 lines of code—most of them brief and all of them required for interoperability out of about 15 million lines in the Android platform as a whole. RT 2191:9-20 (Astrachan); id. at 2194:6-10 (Astrachan); id. at 2244:10-24 (Reinhold); id. at 2301:1-7 (Mitchell). Oracle is asking that the Court ignore this established fact and give it 100% of Google's revenues attributable to the functions provided by every one of the 15 million lines of code in the entire platform. As Google pointed out the last time Oracle brought this motion, "the one fact that stands undoubted" with respect to Google's development of Android is that Google was not able to create a successful smartphone platform for nothing. It is now equally well established that the SSO of the 37 API packages is a tiny fraction of the Android platform as a whole. As the Cream Records court explained, in dealing with these artificial, after-the-fact apportionment calculations, the Copyright Act does not require perfection. "As to the amount of profits attributable to the infringing material, 'what is required is ... only a reasonable approximation.' 754 F.2d at 829 (quoting Sheldon v. Metro-Goldwyn Pictures Corp., 309 U.S. 390, 408 (1940)). Google has exceeded that standard by offering admissible business records and a competent foundational witness in Rubin. Oracle is yet again looking for a windfall. The Court should deny this motion.

Dated: May 1, 2012

KEKER & VAN NEST LLP

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

Attorneys for Defendant
GOOGLE INC.

7



1043

KEKER & VAN NEST LLP
ROBERT A. VAN NEST - # 84065
[email]
CHRISTA M. ANDERSON - # 184325
[email]
DANIEL PURCELL - # 191424
[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 MEMORANDUM OF POINTS
AND AUTHORITIES IN SUPPORT OF
SECOND MOTION FOR JUDGMENT AS
A MATTER OF LAW ON COUNT VIII OF
ORACLE’S AMENDED COMPLAINT

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


TABLE OF CONTENTS

Page
I.INTRODUCTION1
II.LEGAL STANDARD2
III.ARGUMENT2
A.The SSO of the 37 API packages is not copyrightable, and Google is
entitled to judgment as a matter of law on the entirety of Oracle’s copyright
count
2
B.Oracle failed to prove the actual contents of the works that are the subject
of its registrations or that the copyrights cover any component parts of the
works
2
1.Oracle has not proved the contents of the works that were registered,
with the Copyright Office.
2
2.Oracle has not proved that its copyright registrations cover the
individual components of the works on which it bases its claims of
infringement
5
C.Google is entitled to judgment as a matter of law that the source code and
object code implementing the 37 API packages are not derivative works of
Oracle’s specifications.
7
D.Google is entitled to judgment as a matter of law that the names and
declarations from the 37 API packages that appear in the Android source
code are not copyrightable.
8
E.The alleged literal copying is de minimis and thus non-actionable.9
1.Oracle failed to prove that Google’s use of the rangeCheck method
is more than de minimis.
10
2.Oracle failed to prove that the use of the allegedly copied comments
in CodeSourceTest.java and
CollectionCertStoreParametersTest.java is more than de minimis.
11
3.Oracle failed to prove that the use of the eight “Impl” and “ACL”
files is more than de minimis.
12
F.Google is entitled to judgment as a matter of law that its specifications for
the 37 API packages do not infringe Oracle’s copyrights.
14
1.The evidence cannot support a finding that Android’s English-
language documentation was copied from the Java API
specifications.
14
2.The evidence cannot support a finding that the SSO of Android’s
English-language documentation was copied from the Java API
specifications
17

i


G.Google is entitled to judgment as a matter of law on Oracle’s claims based
on alleged literal copying, because Oracle failed to prove that either of the
two copyright registrations on which it relies provides protection for the
individual files on which the literal copying claims are based.
18
H.If the Court accepts Oracle’s now-withdrawn “collective work” argument,
Google is entitled to judgment as a matter of law of non-infringement of
each of the component parts of the registered works, because Oracle has
not proved authorship of the constituent elements.
18
I.Google is entitled to judgment as a matter of law on the entirety of Oracle’s
copyright count, because Oracle’s copyright claims are barred by the
equitable doctrines of laches, equitable estoppel, waiver and implied
license.
19
IV. CONCLUSIONS19

ii


TABLE OF AUTHORITIES

Page(s)
Federal Cases
Allen v. Academic Games League of Am., Inc.
89 F.3d 614 (9th Cir. 1996)
16
Anderson v. Liberty Lobby, Inc.
477 U.S. 242 (1986)
2
Apple Computer, Inc. v. Microsoft Corp.
35 F.3d 1435 (9th Cir. 1994)
6
Baker v. Selden
101 U.S. 99 (1879)
7, 8
Computer Assoc. Int’l, Inc. v. Altai, Inc.
982 F.2d 693 (2d Cir. 1992)
9
Data East USA, Inc. v. Epyx, Inc.
862 F.2d 204 (9th Cir. 1988)
2
Feist Pubs., Inc. v. Rural Tele. Serv. Co.
499 U.S. 340 (1991)
16
Incredible Techs., Inc. v. Virtual Techs., Inc.
400 F.3d 1007 (7th Cir. 2005)
16
Johnson v. Gordon
409 F.3d 12 (1st Cir. 2005)
16
Kodadek v. MTV Networks, Inc.
152 F.3d 1209 (9th Cir. 1998)
2
Lakeside-Scott v. Multnomah County
556 F. 3d 797 (9th Cir. 2005)
14
Mazer v. Stein
347 U.S. 201 (1954)
8
MiTek Holdings, Inc. v. ArcE Eng’g Co. 89
F.3d 1548 (11th Cir. 1996)
10
Newton v. Diamond
388 F.3d 1189 (9th Cir. 2004)
9, 12, 13
Sega Enters. Ltd. v. Accolade, Inc.
977 F.2d 1510 (9th Cir. 1992)
8, 9
Seiler v. Lucasfilm, Ltd.
808 F.2d 1316 (9th Cir. 1986)
2

iii


Weisgram v. Marley Co.
528 U.S. 440 (2000)
2
Willis v. Marion County Auditor’s Office
118 F.3d 542 (7th Cir. 1997)
15
Federal Statutes
17 U.S.C. § 1017
17 U.S.C. § 10216
17 U.S.C. § 102(b)7, 9, 10
17 U.S.C. § 103(b)6, 18
Federal Rules
Fed. R. Civ. P. 501, 2, 18
Federal Regulations
37 C.F.R. § 202.1(a)8
Other Authorities
4 MELVILLE B. NIMMER &DAVID NIMMER, NIMMER ON COPYRIGHT § 13.01[A]6

iv


I. INTRODUCTION

It is time to put Oracle’s copyright claims to rest.

The structure, sequence and organization (“SSO”) of the API packages at issue is not copyrightable, because the SSO is an unprotectable idea, system or method of operation, and because any arguable expression in the SSO is unprotectable under the doctrines of merger and scenes a faire. The grounds for these conclusions will be given in full in Google’s Proposed Findings of Fact and Conclusions of Law, and have been stated in Google’s prior briefs on copyrightability. See Dkts. 260, 368, 562, 601, 778, 823, 831, 852, 860, 897, 898, 955, 993.

In addition, Oracle’s copyright count fails in its entirety because Oracle has not proven the contents of the two works at issue that Sun registered with the Copyright Office, versions 1.4 and 5.0 of Java 2 Standard Edition (“J2SE”). Oracle offered various discs into evidence that purportedly contain copies of versions 1.4 and 5.0 of J2SE. It also offered evidence that shows that a disc might have been submitted to the Copyright Office along with its application for registration of version 5.0. And it offered Dr. Reinhold’s testimony that the source code excerpts submitted with the applications come from versions 1.4 and 5.0 of J2SE. But there have been multiple releases of each version of J2SE, and Oracle has not offered evidence from which a reasonable jury could find that any of the code that is in evidence is a complete copy of the actual, specific releases of versions 1.4 and 5.0 that were registered with the Copyright Office. This basic failure of proof—and the evidence in the record that contradicts Oracle’s assertion that the correct entire works are in the record—prevents Oracle from obtaining any judgment of copyright infringement.

In addition, Google is entitled to judgment as a matter of law on Oracle’s claim that Android’s implementing code is a derivative work of Oracle’s 37 API packages, its copyright claims based on the names and declarations in those packages, its literal copying claims, and its copyright claims based on the specifications (i.e., the documentation) in the 37 API packages.

For these reasons, Google is entitled to judgment as a matter of law pursuant to Rule 50 of the Federal Rules of Civil Procedure on the entirety of Count VIII of the Amended Complaint.

1


II. LEGAL STANDARD

Judgment as a matter of law is proper when “a party has been fully heard on an issue during a jury trial and the court finds that a reasonable jury would not have a legally sufficient evidentiary basis to find for the party on that issue . . . .” Fed. R. Civ. P. 50(a)(1). Rule 50 “allows the trial court to remove . . . issues from the jury’s consideration when the facts are sufficiently clear that the law requires a particular result.” Weisgram v. Marley Co., 528 U.S. 440, 448 (2000) (internal quotations omitted). The standard for granting judgment as a matter of law, in practice, mirrors the standard for granting summary judgment, and “the inquiry under each is the same.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250-51 (1986).

III. ARGUMENT

A. The SSO of the 37 API packages is not copyrightable, and Google is entitled
to judgment as a matter of law on the entirety of Oracle’s copyright count.
The Court should adopt Google’s proposed findings of fact and conclusions of law regarding the uncopyrightability of the SSO, which Google will be filing tomorrow. For those reasons, as well as the reasons stated in Google’s prior briefs, Google is entitled to judgment as a matter of law that the SSO of the J2SE API packages at issue is not copyrightable. See Dkts. 260, 368, 562, 601, 778, 823, 831, 852, 860, 897, 898, 955, 993.

Google is also entitled to judgment as a matter of law on the remainder of Oracle’s copyright count—directed to the specifications and the alleged literal copying—for the reasons given below. Google therefore is entitled to judgment as a matter of law on the entirety of Count VIII of Oracle’s Amended Complaint.

B. Oracle failed to prove the actual contents of the works that are the subject of
its registrations or that the copyrights cover any component parts of the
works.

1. Oracle has not proved the contents of the works that were registered
with the Copyright Office.
It is a fundamental requirement of a copyright claim that a plaintiff introduce into evidence a complete copy of the work on which it suing. See, e.g., Data East USA, Inc. v. Epyx, Inc., 862 F.2d 204, 207 (9th Cir. 1988); see also Kodadek v. MTV Networks, Inc., 152 F.3d 1209 (9th Cir. 1998); Seiler v. Lucasfilm, Ltd., 808 F.2d 1316 (9th Cir. 1986). This requirement is

2


especially important in a case such as this, where a complete copy of the work in which the copyright is registered cannot be obtained from the Copyright Office. It was up to Oracle to prove at trial what the works consist of and which parts of the complete works it owns.

Oracle has not offered proof sufficient to support a jury verdict regarding the actual contents of the works that are the subject of its copyright registrations. More specifically, there is no evidence that either trial exhibit 610.2 or 623, the exhibits that Dr. Reinhold sponsored and identified as “a DVD containing an electronic copy of the Java 5—the JDK documentation,” including “the API specification for Java 5” (TX 610.2), and a DVD containing “the source code for Version 5” (TX 623), see RT 672:16-19, 691:14,1 is in fact a true, complete and accurate copy of J2SE version 5.0 as it was when Sun’s application was submitted to the Copyright Office in December 2004.

Dr. Reinhold’s testimony that the DVDs in evidence (TX 622, 623) are source code for versions 1.4 and 5.0 of J2SE (RT 691:6-14) does not cure this evidentiary gap, because the testimony fails to establish that the DVDs in evidence are in fact the specific releases of these versions of J2SE that are covered by the registrations. See RT 2236:9-2237:13 (Reinhold) (admitting that there were multiple releases of version 5.0 of Java 2 Standard Edition). Nor could Dr. Reinhold testify that trial exhibit 1076, another disc he identified as containing a version 5.0 of J2SE, contained the particular release of version 5.0 of J2SE that actually was registered with the Copyright Office. See RT 2235:10-2238:18. Finally, Dr. Reinhold carefully identified the disc marked as TX 1076 as one that contained “the binary distribution of J2SE 5.0, together with documentation and some tools and things like that.” RT 2235:11-13 (emphasis added). A “binary distribution,” however, is compiled code—bytecode, not source code. Yet the fifty pages of redacted deposit materials that accompanied the copyright application for J2SE version 5.0 was source code (TX 3530), and Oracle’s entire infringement case (except for the eight allegedly copied “Impl”/”ACL” test files) was based on analysis of and allegations of copying of source

__________________________

1 Dr. Reinhold first testified that trial exhibit 623 contained the source code for version 1.4 (RT 689:22-24). After being told by counsel for Oracle that exhibit “623 is the java.nio” (RT 691:13), Dr. Reinhold changed his testimony, stating that exhibit 623 is “the source code for Version 5.” RT 691:14.

3


code.2 There is plainly a disconnect between the work that Oracle now says is the work and what the evidence shows.3

The disconnect is most troubling, moreover, because—to the best of Google’s knowledge after review and analysis of the disc introduced into evidence—the disc that Oracle now says is the “complete work” does not contain the source code that was redacted to create the deposit materials filed with the Copyright Office. While the disc does contain some of the 37 accused API packages in source code format, it does not contain them all; at least six of the 37 packages are on the disc only in compiled code—rather than source code—format. So the disc does not contain all of the 37 packages at issue in any form that is human-readable. Surprisingly, the disc also does not contain source code files that contain the source code pages that were redacted and submitted to the Copyright Office.4 Finally, the disc also does not contain any version, in either source or complied code form, of at least one of the eight “test” files on which Oracle bases its claim of “direct line-by-line copying,” namely the “AclEnumerator” file. Nor does the disc contain a source code version of the “PolicyNodeImpl” file.5

____________________________

2 As a matter of common sense, it was incumbent on Oracle to introduce into evidence the works in some format that is readable by humans; otherwise, there would be no practical way for Oracle to prove its code-based claims or for Google, the Court or the jury to assess them. This is the reason why Oracle’s proof at trial was based on source code—readable by humans—and not compiled code, and why all of the code exhibits the parties showed to the jury consisted of source code rather than compiled code.

3 The testimony of Tiki Dare does not address this failure of proof, because Ms. Dare could not testify that trial exhibit 1076 is the same as the disc that Oracle believes may have been submitted to the Copyright Office or, indeed, whether any disc was in fact submitted to the Copyright Office. See RT 2261:2-10, 2264:4-13. Oracle did not need to prove that any of the discs in evidence are the same as any disc that was or was not submitted to the Copyright Office in 2004 or 2005, moreover, since the discs were not required by the Copyright Office regulations and the one disc that the Copyright Office apparently received (for version 1.4) was not even examined. See TX 3530 at 1. Oracle only needed to prove that some disc that is in evidence in fact contains the complete work as it existed at the time the registration was sought. Oracle failed to do so.

4 The source code that was redacted and submitted to the Copyright Office appears to be taken from at least 38 different source code files. See TX 3529. As far as Google has been able to determine, there are no source code files in TX 1076—which Oracle now says is the “complete work”—that contain any of the pages submitted to the Copyright Office. If the disc does not contain the files from which the source code deposit was excerpted, the disc cannot be the complete work that was registered.

5 The trial exhibit that Oracle presumably relies on to prove the contents of the “AclEnumerator” file (TX 896.8)—like the corresponding exhibits for all eight of the “copied” test files (TX 896.1-896.8, 897)—bears a legend indicating that the source code in that exhibit comes from release “5.0u22,” which would be the twenty-second release of version 5.0 after its initial release. See RT 2237:6-13 (Reinhold). Dr. Reinhold testified that releases “generally” occurred “every few months.” RT 2236:19-20. Given that the registration states that the first date of publication of version 5.0 was on September 30, 2004 (see TX 3529 at 2, space 3b) and that the application was filed less than ninety days later on December 20, 2004 (see TX 3529 at 2), Dr. Reinhold’s testimony suggests that release 5.0u22 postdates the registration application.

Thus, there is no evidence that the “decompiled files” are related to files that are in the work that is the subject of the registration. Indeed, the materials in TX 897 that come from release 5.0u22 bear copyright notices with dated as late as 2009—five years after the copyright registration. See TX 897. These exhibits, moreover, were stipulated into evidence at Oracle’s request. No witness testified about them, see RT 1256:25-1262:1 (Mitchell), and Dr. Reinhold testified that he could not state when the various releases of version 5.0 occurred or whether any release after 5.0 was released before December 20, 2004. See RT 2236:9-2237:13.

4


Oracle, in short, did not prove that any exhibit in evidence is the actual “work” that is the subject of the registrations for either version 1.4 or 5.0 of J2SE. Instead, the evidence demonstrates that there is no complete copy of the works at issue in the record. Neither the Court nor Google should at this point be forced to speculate what the complete works are—that is a fundamental, basic element of Oracle’s proof. Without evidence proving the actual contents of the complete works it registered— the contents of the actual works registered, not of releases that may bear the same version number but are not the same—Oracle cannot prevail on its copyright count. Google is therefore entitled to judgment as a matter of law on the entirety of Count VIII of the Amended Complaint.

2. Oracle has not proved that its copyright registrations cover the
individual components of the works on which it bases its claims of
infringement.
Even if Oracle had proven the contents of the complete works, it failed to prove that the copyrights cover individual components of the works standing alone.6 As a result, its rights in the works it registered are limited to the specific combination of the individual elements that make up those specific versions, and any individual components of the work to which Oracle proved it owns the copyrights. Oracle made no such showing.

_________________________

6 Oracle has suggested that Google waived this argument during proceedings outside the presence of the jury when Dr. Reinhold was on the stand. What counsel for Google said, however, is that Google is “not disputing ownership of the copyrights.” RT 713:19-20 (emphasis added). This was directly in response to a statement by counsel for Oracle that “[t]here is no question that Oracle has the right, as a matter of ownership, to assert the copyrights at issue here.” RT 713:16-18 (emphasis added). And that is correct—Google does not dispute that Oracle owns and can assert the copyrights that it registered, for versions 1.4 and 5.0 of J2SE. What Google disputes is whether Oracle has proved what is in those works, and whether Oracle’s copyrights cover particular parts of those works. See RT 1884:10-1885:8 (counsel for Google); RT 1887:16-23 (Court).

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As the registrations confirm, Oracle’s works are derivative works; they include both new material and material from prior works, namely the prior versions of the Java platform. See TX 464 at space 6, TX 475 at space 6 (identifying pre-existing materials and new materials). The registrations also establish that Sun did not own at least some parts of the works—they identify the “pre-existing” materials as including “licensed-in components.” Id. The registrations and materials submitted to the Copyright Office do not, however, identify whether the “licensed-in components” were new to the versions being registered, also present in earlier versions, or some combination of those two possibilities.

Section 103(b) of the Copyright Act provides:

(b) The copyright in a compilation or derivative work extends only to the material contributed by the author of such work, as distinguished from the preexisting material employed in the work, and does not imply any exclusive right in the preexisting material. The copyright in such work is independent of, and does not affect or enlarge the scope, duration, ownership, or subsistence of, any copyright protection in the preexisting material.
17 U.S.C. § 103(b) (emphasis added). In order to maintain any claim based on anything less than all of version 1.4 or 5.0 of J2SE taken as a whole, Oracle must at a minimum, as part of its burden of proving that its copyright covers or extends to the matter sued on, establish that it owns any individual component parts on which it is basing a claim. See generally Apple Computer, Inc. v. Microsoft Corp., 35 F.3d 1435, 1447-48 (9th Cir. 1994); 4 MELVILLE B. NIMMER &DAVID NIMMER, NIMMER ON COPYRIGHT § 13.01[A] (a plaintiff that is not the author of a work must prove “a transfer of rights or other relationship between the author and the plaintiff so as to constitute the plaintiff as the valid copyright claimant”). For purposes of this action, those parts would include (1) the 37 packages that form the basis of Oracle’s SSO claim; (2) the files that contain the English-language comments on which Oracle bases its “specifications” claim; and (3) the individual files that contain all of the code and comments that were allegedly copied literally.

These principles are best illustrated by a simple example. Oracle claims that the eight test files that appear in Android were “copied” from its work. In order to sustain a claim that asks the Court to treat each individual file as the “work as a whole” for purposes of Oracle’s allegations,

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Oracle must have proven that (1) each file is in fact a part of the version of the work on which it is suing; and (2) Oracle owns all rights to each file as a standalone work. Oracle proved neither one.

C. Google is entitled to judgment as a matter of law that the source code and
object code implementing the 37 API packages are not derivative works of
Oracle’s specifications.
Oracle claims that Google’s implementing source code is a derivative work of Oracle’s English-language descriptions because Google’s source code does the things that the English descriptions describe. See Dkt. No. 859 at 10 (Oracle is claiming infringement based on “Google’s creation of derivative works from the English-language descriptions of the elements in the API specifications”). That is nothing but an assertion that Google’s expression infringes Oracle’s ideas. Oracle thus stands as an exception to the Supreme Court’s statement that “no one would contend that the copyright of the treatise would give the exclusive right to the art or manufacture described therein.” Baker v. Selden, 101 U.S. 99, 102 (1879).

Because Oracle’s position is barred by section 102(b) of the Copyright Act, Google is entitled to judgment as a matter of law that the source code and object code implementing the 37 API packages are not derivative works of Oracle’s specifications. See 17 U.S.C. § 102(b). This issue raises a question of law that does not depend on any disputed issues of fact.

Oracle’s derivative work claim is a “classic case of trying to lay claim to the ownership of an idea.” RT 1869:15-16 (Court). The specifications “explain in detail what the module is supposed to accomplish,” and writing implementing code that does what the specifications explain is like “creative writing.” RT 1869:18-21 (Court); see also RT 1368:25-1369:1 (Court) (Oracle’s derivative work argument “just seems to me to be invalid under the basic tenets of copyright law”); RT 1375:22-24 (Court) (Oracle’s derivative work claim doesn’t “add[] anything, except violating the principle of you can’t get a monopoly and ownership over an idea”); RT 2434:13-2435:16 (Court) (rejecting Oracle’s derivative work theory).

Oracle’s derivative work claim is contrary to the idea/expression dichotomy that is codified in section 102(b) of the Copyright Act. It also is contrary to the statutory definition of a derivative work, which is a work based on “one or more preexisting works,” 17 U.S.C. § 101, not

7


a work based on preexisting ideas.

Oracle’s approach is barred by Baker v. Selden:

To give to the author of the book an exclusive property in the art described therein, when no examination of its novelty has ever been officially made, would be a surprise and a fraud upon the public. That is the province of letters-patent, not of copyright. The claim to an invention or discovery of an art or manufacture must be subjected to the examination of the Patent Office before an exclusive right therein can be obtained; and it can only be secured by a patent from the government.
101 U.S. at 102. It is also barred by Mazer v. Stein: “Unlike a patent, a copyright gives no exclusive right to the art disclosed; protection is given only to the expression of the idea—not the idea itself.” 347 U.S. 201, 217 (1954). And it is barred by Sega Enters. Ltd. v. Accolade, Inc., under which “functional requirements for compatibility” with a system described by or implemented in a copyrighted work cannot be protected by copyright law. 977 F.2d 1510, 1522 (9th Cir. 1992).

D. Google is entitled to judgment as a matter of law that the names and
declarations from the 37 API packages that appear in the Android source
code are not copyrightable.
The Court has already held that the names of API elements are not protectable. Copyright MSJ Order [Dkt. 433] at 7:24-8:4. The Court reached this holding based on the “words and short phrases” doctrine. See id.; 37 C.F.R. § 202.1(a).

For the same reason, the declarations (i.e., the method signatures)7 in the 37 API packages are not protectable. A declaration (e.g., “public static int max(int arg1, int arg2)”8) is a short series of words—a short phrase. A short phrase is not protectable, just as a name cannot be protected. 37 C.F.R. § 202.1(a); see also Copyright MSJ Order [Dkt. 433] at 7:24-8:4. Indeed, in Sega, the Ninth Circuit held that computer code of a similar length was “probably unprotected under the words and short phrases doctrine.” 977 F.2d at 1524 n.7.

Moreover, the declarations are purely functional, and must remain exactly the same in order to ensure compatibility with Java language programs calling on the methods in those 37 API packages. Because computers are very literal, “[i]f you get anything even a little bit wrong,

_________________________

7 RT 796:2-25 (Bloch) (explaining what a method signature, or declaration, is).

8 RT 796:19:21 (Bloch).

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if you type a capital letter when the method name has lower case letter in Java your program won’t run.” RT 765:6-8 (Bloch). In contrast, as Oracle’s expert Professor Mitchell conceded, if you implement an API consistent with its specification—i.e., so that “it uses the same API”—“you would expect the same outcome.” RT 2293:5-8.

Thus, code written that uses methods from the 37 packages is “compatible” with both the Android and J2SE platforms. See RT 2293:9-14 (Mitchell) (agreeing that this is “a great definition of ‘compatible’); see also RT 2185:5-9 (Astrachan) (structure of the elements of the API packages have to be the same “so that the code will work on both platforms, be compatible, inter-operate”). If Google had instead created its own APIs that were different than the APIs in the 37 API packages, developers would have had to be re-educated to use the new APIs. See RT 520:3-6 (Screven). Because Google implemented the Java language APIs for the 37 API packages, the Android and J2SE platforms are compatible with respect to those 37 API packages. RT 2171:19-2172:11 (Astrachan); see also RT 2287:23-2288:5 (Mitchell) (J2SE core libraries and Android core libraries are incompatible “beyond the 37 packages,” but for the 37 packages they “overlap”). Because the names and declarations in the 37 API packages are functional requirements for compatibility, those names and declarations are not protected by copyright. Sega, 977 F.2d at 1522 (citing 17 U.S.C. § 102(b)).

In sum, the names and declarations from the 37 API packages are unprotectable both by virtue of the words and short phrases doctrine, and section 102(b) of the Copyright Act. Thus, Google is entitled to judgment as a matter of law that its use of the names and declarations from the 37 API packages is not copyright infringement.

E. The alleged literal copying is de minimis and thus non-actionable.
De minimis acts of copying are not actionable. Newton v. Diamond, 388 F.3d 1189, 1192-93 (9th Cir. 2004). Where the only similarity is as to “nonessential matters,” the copying is de minimis. See id. at 1195 (quoting 4 NIMMER ON COPYRIGHT § 13.03[A][2]). Where a defendant copies only “a portion of the plaintiff’s work exactly or nearly exactly . . . the dispositive question is whether the copying goes to trivial or substantial elements.” Id. That substantiality is judged by “considering the qualitative and quantitative significance of the copied portion in relation to

9


the plaintiff’s work as a whole.” Id. (emphasis added); see also Computer Assoc. Int’l, Inc. v. Altai, Inc., 982 F.2d 693, 714-15 (2d Cir. 1992). Oracle bears the burden of proving the significance of any copied code. MiTek Holdings, Inc. v. ArcE Eng’g Co., 89 F.3d 1548, 1560 (11th Cir. 1996) (“The burden is on the copyright owner to demonstrate the significance of the copied features, and, in this case, MiTek has failed to meet that burden.”).

Oracle hired Dr. Marc Visnick to compare the code in the Java JDK to Android 2.2. RT 1309:8-1310:18 (Mitchell). This entailed a comparison of hundreds of thousands, or even millions, of lines of code as well as “thousands and thousands” of separate files. RT 1310:19-1311:1 (Mitchell). Despite this “very extensive” search, RT 1310:24-1311:1, Dr. Visnick only identified 12 files that allegedly contained copied code. See RT 1313:1-11 (Mitchell). These files consist of a nine-line function called rangeCheck, two comment files that never appeared on a phone, and ten test files that never appeared on a phone. See RT 1314:2-1320:6 (Mitchell).

1. Oracle failed to prove that Google’s use of the rangeCheck method
is more than de minimis.
The evidence cannot support a finding that the nine-line rangeCheck method is qualitatively significant. RT 813:7-8 (Bloch) (rangeCheck is a “very short simple method); RT 815:5-9 (Bloch) (rangeCheck “simply makes these three checks”); RT 815:13-16 (Bloch) (rangeCheck is a “[v]ery, very simple” method that “[a]ny competent high school programmer could write”). Even Oracle’s expert Dr. Mitchell conceded that “a good high school programmer” could write rangeCheck. RT 1316:24-25. In fact, the rangeCheck method is not even a part of the most recent and current versions of Android. See RT 825:8-19 (Bloch). When asked whether the rangeCheck method has any economic significance outside of the library it is a part of, Dr. Mitchell stated that he was “not sure” it had any such significance. RT 1316:12-18.

Even within the library, Dr. Mitchell did not opine that it was significant, only that it was “useful.” Id. The purported subtlety to the code, according to Dr. Mitchell, “is figuring out exactly what you wanted the function to do, more than realizing that function in Java code once that’s understood.” RT 1317:3-5. That, however, confirms that while the idea underlying the code might have some importance, the code itself is not qualitatively significant. The idea, of

10


course, is not copyrightable. 17 U.S.C. § 102(b).

Dr. Mitchell also testified that the rangeCheck method is purportedly called over 2,600 times when an Android emulator is started up. See RT 1329:15-21. But he offered no testimony that would allow a reasonable jury to conclude that a method called that many times is qualitatively significant. He offered no testimony, for example, whether there are other methods that are called tens of thousands of times, hundreds of thousands of times, or even millions of times during startup. Nor did he offer any testimony about the qualitative significance of the calls to rangeCheck. Mere frequency of use of a trivial element cannot support a finding of qualitative significance. A typical novel might include the word “the” thousands of times, but that does not render the word “the” qualitatively significant to Moby Dick. During a business meeting, attendees might blink their eyes hundreds or thousands of times, but that does not mean the act of blinking was qualitatively significant. Professor Mitchell’s testimony about how many times rangeCheck is purportedly called during the startup of an Android emulator, standing alone and without any frame of reference, cannot support a finding of qualitative significance.

The evidence also cannot support a finding that the nine-line rangeCheck method is quantitatively significant. The rangeCheck method is only nine lines long—thirteen lines, if four lines of comments are included. TX 623 at 25 (lines 1314-26). The Arrays.java file in J2SE that includes this method is 3,179 lines long. TX 623 at 61 (final line number in file is 3,179). Thus, even assuming Oracle’s “work as a whole” is just the Arrays.java file,9 the method is less than three-tenths of one percent of the work as a whole.

Because Oracle has not proven that the rangeCheck method is qualitatively or quantitatively significant, its use is at most de minimis, and therefore not actionable.

2. Oracle failed to prove that the use of the allegedly copied comments in
CodeSourceTest.java and CollectionCertStoreParametersTest.java is
more than de minimis.
The evidence cannot support a finding that the allegedly copied comments in CodeSourceTest.java and CollectionCertStoreParametersTest.java are qualitatively significant.

___________________________

9 Google continues to assert that the works as a whole should, for all purposes, be the entire platforms registered by Sun. See, e.g., Dkt. 993.

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Because they are comments, they have absolutely no effect on any compiled code. See RT 1317:6-14 (Mitchell). All that Dr. Mitchell was able to say is that “comments are for other programmers or users of the code.” RT 1317:24-25. But whether comments generally can offer guidance to programmer fails to address whether these comments offer qualitatively significant guidance to programmers. There is no evidence of the purported qualitative significance of these comments.

The evidence also cannot support a finding that the comments are quantitatively significant. The comments at issue are less than three percent of one file, and only one quarter of the other. See TX 623.9, 623.10.

The ultimate test is that alleged copying is de minimis “if the average audience would not recognize the appropriation.” Newton, 388 F.3d at 1193. Here, there is no evidence that anyone even noticed the alleged copying until an extensive forensic analysis was performed, using specialized computer tools. See RT 1309:8-1313:11 (Mitchell) (testifying about Dr. Visnick’s forensic analysis). On this record, no reasonable jury could find that the average audience would recognize the alleged appropriation in these files.

Finally, Google again notes that, as it has addressed in its prior briefs, the proper “work as a whole” is the entire registered work, or at least that there is no evidence supporting using the individual files as the works as a whole. Because the work as a whole should be larger than the individual files, the allegedly copied comments are even more quantitatively insignificant.

Because Oracle has not proven that the allegedly copied comments are qualitatively or quantitatively significant, Google’s use of them is at most de minimis, and thus not actionable.

3. Oracle failed to prove that the use of the eight “Impl” and “ACL” files
is more than de minimis.
Oracle failed to prove that there was any copying (let alone copying of more than a de minimis amount) from Oracle’s works as a whole for these eight files, even assuming that the individual Oracle files are the proper works as a whole for this analysis. Oracle offered into evidence the source code for seven Oracle “Impl” files. See TX 623.2-623.8.10 Oracle does not

_________________________

10 Oracle did not introduce into evidence the source code for any file named “AclEnumerator.java,” only what appears be a decompiled file named “AclEnumerator.jad.” There is no evidence in the record that this eighth allegedly copied file, “AclEnumerator.java,” is part of either of the two registered works at issue in this case. See n.5, supra.

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claim, however, that Google copied anything from these source code files. Instead, Oracle argues that Google copied from object code using a decompiler. See RT 1257:3-1258:6 (Mitchell). Dr. Mitchell testified that the source code in the eight Android “Impl” and “ACL” files is similar to the decompiled versions of certain Oracle object code files. See RT 1259:16-1260:18. Dr. Mitchell did not testify, however, that the object code files he examined are the compiled versions of the source code files in evidence as trial exhibits 623.2-623.8. See id.

Oracle also moved into evidence by stipulation what appear to be decompiled versions of the eight “Impl” and “ACL” files, with filenames ending in “.jad”. See RT 1153:8-13; TX 896.1-896.8. There was, however, no testimony explaining what these files are. Moreover, Dr. Mitchell did not identify the names of the allegedly copied Oracle files that he purportedly examined. See RT 1259:16-1260:18. In fact, Dr. Mitchell did not even testify that the unnamed Oracle files he examined were part of either of the registered works at issue in this case. See RT 1259:16-1260:18. Because of this failure of proof, Oracle has not established that the eight Android “Impl” and “ACL” files involved more than de minimis copying from any files that are part of either of the registered works at issue in this case or are owned by Oracle.

Moreover, as with the comments, there is no evidence that anyone noticed the alleged copying in the eight “Impl” and “ACL” files until an extensive forensic analysis was performed, using specialized computer tools. See RT 1309:8-1313:11 (Mitchell) (testifying about Dr. Visnick’s forensic analysis). Thus, there is no evidence that the average audience would recognize the alleged appropriation. See Newton, 388 F.3d at 1193. Oracle therefore as not proven that the alleged copying was more than de minimis.

Furthermore, Oracle offered no evidence that the code in these files is qualitatively significant. Dr. Mitchell testified that the code has some connection to access control lists, which relate to security. See RT 1329:22-1330:5. He did not, however, explain what the code does, or why it is qualitatively significant. Moreover, Dr. Mitchell testified that he had no reason to believe that these files were ever placed on a handset. See RT 1319:15-20. There is no other

13


evidence in the record suggesting that these files were ever placed on a handset. There is also no evidence in the record that these files had any significance at all to the functioning of either J2SE or Android.11

Finally, properly compared to the proper works as a whole, as addressed by Google’s prior briefs, the code in these eight files is quantitatively insignificant whether considered individually or collectively.

F. Google is entitled to judgment as a matter of law that its specifications for the
37 API packages do not infringe Oracle’s copyrights.
Oracle alleges that Google’s specifications (i.e., the documentation) for the 37 accused API packages infringe Oracle’s copyrights. Specifically, Oracle alleges that (a) the substance of Android’s English-language documentation infringes; and (b) the SSO of that documentation also infringes. The Court should grant judgment as a matter of law as to the first allegation because the evidence cannot support a finding that the contents of the documentation describing the 37 accused API packages in Android was copied from the J2SE documentation. The Court should also dismiss the second allegation because it simply collapses into Oracle’s claim that Google copied the SSO of the 37 accused API packages; the documentation is generated by an automated program, such that the SSO of the documentation is a natural derivative of the SSO of the API packages it represents. See RT 1169:3-4 (Lee). Moreover, the second allegation is barred because, for the reasons stated in Google’s proposed findings of fact and conclusions of law, the SSO of the 37 accused API packages is not copyrightable.

1. The evidence cannot support a finding that Android’s English-
language documentation was copied from the Java API specifications.
Oracle presented evidence of precisely three examples of alleged substantial similarity between Google’s and Oracle’s specifications for the 37 API packages. A “mere scintilla” of

_________________________

11 Dr. Mitchell did testify that test files generally are an important part of software development. RT 1330:15-24. However he never testified as to how many test files there are in J2SE or Android, or to the role played by these particular test files. The best Dr. Mitchell could do was to state that “if [these files] helped [Google] test other code they were developing, and speed up and lessen the cost of testing and quality assurance, then that would have a big value to [Google].” RT 1331:3-5 (emphasis added). There is no evidence in the record that these eight files, out of the tens of thousands of files in both Android and J2SE, were anything other than trivial and insignificant.

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evidence is insufficient to support a jury verdict. See Lakeside-Scott v. Multnomah County, 556 F.3d 797, 802 (9th Cir. 2005) (quoting Willis v. Marion County Auditor’s Office, 118 F.3d 542, 545 (7th Cir. 1997)). Oracle’s three examples—out of over 11,000 pages of specifications (RT 617:2-7 (Reinhold))12—cannot support a jury verdict.

In its first example, Oracle focused on the descriptions in the J2SE and Android specifications for the CipherInputStream class in the javax.crypto package. Counsel for Oracle asked Bob Lee to compare the following portions of the descriptions of CipherInputStream in the J2SE 5.0 and Android specifications:

J2SE 5.0Android
A CipherInputStream is composed of an InputStream and a Cipher so that read() methods return data that are read in from the underlying InputStream but have been additionally processed by the Cipher. The Cipher must be fully initialized before being used by a CipherInputStream. This class wraps an InputStream and a cipher so that read() methods return data that are read from the underlying InputStream and processed by the cipher.

The cipher must be initialized for the requested operation before being used by a CipherInputStream.

Compare TX 610.2 with TX 767; see also RT 1169:25-1170:19 (Lee). These are sufficiently different that no reasonable jury could find that they are virtually identical. Oracle’s second and third examples are no better. See RT 1171:3-1172:25 (Lee) (comparing descriptions in the Android and J2SE specifications for the Cipher class in the javax.crypto package); RT 1174:17-1175:9 (Lee) (comparing descriptions in the Android and J2SE specifications for the Pipe class in the java.nio.channels package).

As Mr. Lee explained, any similarities between the specifications are to be expected, given that the thing being described is the same in both specifications:

Q. Highly similar? Not so similar? What’s your judgment?

A. In this case they contain the same words, certainly, but that’s to be expected when you’re trying to—you’re describing various specific concepts in as few words as possible. You’re trying to provide, like, a very concise explanation.

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12 The 11,000 page figure is the length of the specifications for just the 37 API packages. The specifications for all 166 API packages of the J2SE 5.0 platform presumably are several-fold longer, and the size of the J2SE 5.0 platform as a whole is larger still.

15


Like, for example, the first sentence. What is a pipe, in one sentence. Certainly, if you’re trying to do it in that few words, they are going to contain similar words because these are kind of, I guess, the common language or currency of these APIs and simply the technology.

Like, “pipe” isn’t even actually a—it’s not necessarily a Java term. It predates Java.

Q. So you would—

A. Like, it’s a common technical term.

RT 1175:10-24 (Lee). On these facts, any protection in the descriptions in the J2SE 5.0 specifications is, at best, thin, and protected only against virtually identical copying. See Allen v. Academic Games League of Am., Inc., 89 F.3d 614, 618 (9th Cir. 1996) (applying merger doctrine to deny protection to written expression of game rules); Incredible Techs., Inc. v. Virtual Techs., Inc., 400 F.3d 1007, 1013 (7th Cir. 2005) (“utilitarian explanations” of a system “are not sufficiently original or creative to merit copyright protection,” or alternatively are protected “only against virtually identical copying”).13 And no reasonable jury could find that the Android and J2SE specifications are virtually identical.

Professor Mitchell’s testimony does not help Oracle’s case because he did not apply the correct standard. When asked whether the description “Returns a reference to the private key component of this key pair” (J2SE) is substantially similar to the description “Returns the private key” (Android), Professor Mitchell testified, “I think if you were considering using this method, both would tell you the same information, that you can use this method to get the private key component of the key pair.” RT 1327:14-24, 1328:2-4 (emphasis added). When asked again, he testified, “I think in the context of the rest of the description they mean the same thing.” RT 1328:9-10 (emphasis added). When asked a third time whether the descriptions are substantially similar, and directed by the Court to answer “yes” or “no,” Professor Mitchell responded, “Yes.” RT 1328:24. The only reasonable conclusion that a jury can draw from this series of responses is that Professor Mitchell is basing his conclusion of substantial similarity on the fact that both

________________________

13 See also Johnson v. Gordon, 409 F.3d 12, 19 (1st Cir. 2005) (“copyright law protects original expressions of ideas but it does not safeguard either the ideas themselves or banal expressions of them” (emphasis added) (citing Feist Pubs., Inc. v. Rural Tele. Serv. Co., 499 U.S. 340, 345-51 (1991)).

16


descriptions express the same idea. That, however, is not infringement. See 17 U.S.C. § 102. Moreover, as the Court has held, the test for infringement for the documentation is “virtual identity.” Because Professor Mitchell did not opine that the documentation for Android and J2SE are virtually identical, it cannot support a jury verdict. Professor Mitchell’s opinion about alleged substantial similarity between the Android and J2SE specifications must therefore be disregarded entirely.

Given the thin protection for these descriptions, no reasonable jury could conclude that the Android specifications infringe Oracle’s copyrights.

2. The evidence cannot support a finding that the SSO of Android’s
English-language documentation was copied from the Java API
specifications.
Oracle elicited testimony that the SSO of the documentation for the 37 accused API packages lines up with that of the corresponding Java documentation. Mr. Lee testified as follows:

Q. And the structure of the documentation is identical; correct, sir? And if you think of it as an outline, the outline would match identically; correct, sir?

A. Yes.

Q. And that’s because on the Android side you're documenting the same application programming interfaces as were documented on the Java side; correct, sir?

A. Yes.

RT 1174:9-16. But this is no surprise. As Mr. Lee also testified, the documentation for both J2SE and Android is created automatically by a tool that reads demarcated portions of the source code for inclusion in a template. See RT 1168:21-1169:15 (Lee). In short, the creation of the documentation is mechanized. See RT 607:18-24, 614:1-4 (Reinhold). Since the documentation is based on the same starting point—the names of the methods in the 37 API packages at issue—the SSO of the Android and J2SE documentation inevitably will be the same.

Given that the documentation is generated automatically, Oracle’s allegation that the SSO of the Android documentation infringes Oracle’s copyrights on the J2SE specification collapses into Oracle’s separate, overriding claim that Google’s use of the names in the 37 API packages

18


infringes Oracle’s copyrights in the SSO of its API packages. Similarities in the SSO of the documentation are an inevitable byproduct of using the same names in those API packages and their elements; they are not a separate act of infringement. Put another way, the similarities derive from Google’s use of the names in the 37 API packages at issue, not from a separate act of copying any Oracle documentation for those 37 API packages. Accordingly, Oracle’s separate claim that the SSO of the documentation infringes should be dismissed as a matter of law, leaving the actual issue—Google’s use of the names in the 37 accused API packages—for the jury to decide.

G. Google is entitled to judgment as a matter of law on
Oracle’s claims based on alleged literal copying, because Oracle failed to prove that either of the two
copyright registrations on which it relies provides protection for the
individual files on which the literal copying claims are based.
As noted above in Part III.B.2, Sun’s registration of the works as derivative works means that, absent proof that it owns individual components, Oracle’s copyright in version 5.0 “extends only to material contributed by [Sun, as] the author of the derivative work.” See 17 U.S.C. § 103(b). Over Google’s objection, Oracle convinced the Court to define the “works as a whole” for its literal copying claims as the individual files in which the allegedly copied materials (code or comments) appear in version 5.0 of J2SE. Oracle made no attempt to prove that it owns any of those individual files, let alone when those files and the allegedly copied material were first added to the J2SE platform. See Part III.B.2, supra. Absent such proof, Oracle’s claims based on copying of specific files as separate protected works must fail.

H. If the Court accepts Oracle’s now-withdrawn “collective work” argument,
Google is entitled to judgment as a matter of law of non-infringement of each
of the component parts of the registered works, because Oracle has not
proved authorship of the constituent elements.
Oracle has now confirmed that it has withdrawn its “collective work” argument. If Oracle had not done so, and had the Court accepted the “collective work” argument, Google would be entitled to judgment as a matter of law of non-infringement of each of the component parts of the registered works, because Oracle has not proved authorship of the constituent elements, for the reasons set forth in Google’s prior Rule 50 motion. See Dkt. 984 at 11-12.

18


I. Google is entitled to judgment as a matter of law on the entirety of Oracle’s
copyright count, because Oracle’s copyright claims are barred by the
equitable doctrines of laches, equitable estoppel, waiver and implied license.
The Court should adopt the proposed findings of fact and conclusions of law regarding Google’s equitable defenses that Google will be filing tomorrow. For those reasons, Google is entitled to judgment as a matter of law that Oracle’s copyright claims are barred by the equitable doctrines of laches, equitable estoppel, waiver and implied license.

IV. CONCLUSIONS

For the foregoing reasons, Google respectfully requests that the Court grant its motion for judgment as a matter of law on the entirety of Count VIII of Oracle’s Amended Complaint.

Dated: May 1, 2012

KEKER & VAN NEST LLP

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

Attorneys for Defendant
GOOGLE INC.

19



1045


1047


1049


1050

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 SECOND
PHASE OF TRIAL

In the event that a verdict is returned on Thursday, May 3, the Court would like to give the jury Friday off and to start the patent phase on Monday, May 7, at 7:30 a.m. Please advise the Court immediately if there are any witness problems which would interfere with this plan.

IT IS SO ORDERED.

Dated: May 2, 2012.

/s/William Alsup
WILLIAM ALSUP
UNITED STATES DISTRICT JUDGE


1051

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 telephone fax]

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.

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 STATEMENT
REGARDING J2SE 5.0
SPECIFICATION LICENSE
(TX610.1)

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


This morning, the Court asked the parties where the capitalized word “Specification” in the Specification License (TX610.1) is defined. As the Court noted, the formal definition of “Specification” is contained in the first line of the document:

Specification: JAVA 2 PLATFORM STANDARD EDITION
DEVELOPMENT KIT 5.0 Specification (“Specification”)
(TX610.1.)

Of particular relevance here, however, is that this is the Specification License for the Java 2 SE 5.0 API “Specification”—the same API specification of which Google claims Android is an implementation.

Sun and Oracle have included versions of this license in all releases of the Java API Specification from 1996 to the present, including on the copyright notice page of the book versions of the Java API Specification. See THE JAVA™APPLICATION PROGRAMMING INTERFACE, VOLUME 1: CORE PACKAGES (1996) (TX 980) at 6 (copyright page); THE JAVA™ APPLICATION PROGRAMMING INTERFACE, VOLUME 2:WINDOW TOOLKIT AND APPLETS (1996) (TX 981) at 5 (copyright page).

Confirmation that the “Specification” referred to in the definitional language of the license includes the API Specification may be seen most readily by examining the JDK 5.0 documentation. This documentation was submitted as TX 610.2. The documentation includes the license agreement itself and also links to it from portions of the documentation. One of those links is from the Java 2 Platform Standard Edition 5.0 API Specification, which is also part of TX 610.2.

Dated: May 2, 2012

MORRISON & FOERSTER LLP

By: /s/ Michael A. Jacobs

Attorneys for Plaintiff
ORACLE AMERICA, INC.

1



1052

KEKER & VAN NEST LLP
ROBERT A. VAN NEST - # 84065
[email]
CHRISTA M. ANDERSON - # 184325
[email]
DANIEL PURCELL - # 191424
[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 STATEMENT REGARDING
TRIAL EXHIBIT 610.1

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


I. The trial record contains no evidence about the meaning of the term “Specification”
in TX 610.1, other than the implied definition in its title.

The Court has asked about the term “Specification,” and specifically about whether the term “Specification,” as used in TX 610.1, is defined. See RT 2672:3-12. Other than the implied definition at the top of the document, which suggests that the term “Specification” means either “Specification: JAVA 2 PLATFORM STANDARD EDITION DEVELOPMENT KIT 5.0 Specification” or perhaps “JAVA 2 PLATFORM STANDARD EDITION DEVELOPMENT KIT 5.0 Specification,” there is no definition of the term “Specification” in the document itself.

The title indicates that the “Specification” that is referred to throughout TX 610.1 is the specification for the J2SE Development Kit—which would include not only API packages but also a virtual machine, a compiler and the other elements of the development environment, including a runtime. This definition would be consistent with and would help explain the inclusion in the agreement of not only a copyright license but also a patent license (see TX 610.1 (second paragraph) (referring to “any applicable copyrights or patent rights”)).

The trial testimony about this document does not suggest a better or different definition. Mr. Kurian identified this exhibit as a “specification license” for the “Java 2 Platform Standard Edition Development Kit 5.0 specification.” RT 370:10-17 (emphasis added). He testified to his understanding of the rights granted to and obligations accepted by licensees, but did not define the “specification” to which the rights and obligations pertain. See RT 371:7-381:25. Mr. McNealy also testified about TX 610.1, claiming that it “looks like” a license to “use the Java 2 Standard Edition development specification.” RT 2052:6-22 (emphasis added). He testified about his understanding of what a “specification” is, but did not further explain what particular specification is being referenced in the exhibit. See RT 2052:23-2053:16. In fact, Mr. McNealy testified that he was “not quite sure specifically” to what TX 610.1 pertained. See RT 2053:17- 2054:10. He then testified only to his general understanding of specification licenses at Sun, and not about TX 610.1 in particular. RT 2054:21-2056:13. There is no other testimony in the record about TX 610.1.

1


II. The evidence in the trial record about TX 610.2 suggests that the term
“Specification” in TX 610.1 refers to the specification for the entire development kit,
not just the APIs.

Dr. Reinhold testified that TX 610.2 is “a DVD containing an electronic copy of the Java 5—the JDK documentation.” RT 672:16-18. He further testified that the DVD “includes the API specification for Java 5,” RT 682:18-19, but did not testify that the DVD is limited to the API specification. Mr. Lee, Professor Mitchell, Mr. Bornstein and Professor Astrachan were also questioned about TX 610.2 RT 1168:21-1176:3 (Lee); RT 1247:1-1253:25, 2279:13-2280:6 (Mitchell); RT 1836:15-1839:8 (Bornstein); RT 2217:19-2221:10 (Astrachan). None of these witnesses were asked any questions about any license pertaining to the material in TX 610.2.

Trial Exhibit 610.2 contains over 200 megabytes of data, including information and documentation about the Java language, the Java virtual machine, development tools such as the Java Virtual Machine Tool Interface, the Java Platform Debugger Architecture, the Java compiler and the Javadoc Tool. See TX 610.2. In short, as suggested above, the term “Specification” as used in TX 610.1 appears to refer to documentation for far more than just the 166 J2SE API packages. Finally, the more than 200 megabytes of data in TX 610.2 includes a file named “/docs/relnotes/license.html,” which appears to be the same as TX 610.1. However, there is no testimony in the record about this electronic file, and thus no evidence that the license pertains to anything other than the entirety of the materials that comprise TX 610.2.

III. There is no evidence that anyone at Google ever saw the Sun “specification license.”

As noted above, only two witnesses—Messrs. Kurian and McNealy—were questioned about TX 610.1. Neither of them is or was a Google employee. Two former Google employees, Messrs. Lee and Bornstein, were questioned about TX 610.2, but neither was asked whether he had ever seen the license file that is part of that exhibit. Two Google witnesses were asked about specification licenses generally: Mr. Bloch testified that he didn’t “know what a specification license is,” and Dr. Schmidt was also unfamiliar with the term. RT 829:1 (Bloch); RT 1558:25- 1559:4 (Schmidt) (“Q. Do you know whether or not—you know that one of the kinds of licenses that Sun offered was a specification license; did you know that? A. Again, I’m not familiar with the specific Sun licenses that were available.”). In short, there is no evidence that anyone at

2


Google ever saw TX 610.1.1

Dated: May 2, 2012

KEKER & VAN NEST LLP

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

Attorneys for Defendant
GOOGLE INC.

___________________________

1 Mr. Cizek did identify a “Sun Community Source License” entered into between Sun and Danger. See RT 1061:3-8. The document was signed on behalf of Danger by Henry Nothhart. See TX 1026 at 15. There was no testimony that any Danger employee who later became a Google employee ever saw this document. The document is very different from TX 610.1. Compare TX 1026 with TX 610.1. Finally, although TX 1026 does include the term “Specifications,” that term is defined to mean “specifications for the Technology and other documentation, as designated on the Technology Download Site . . . .” TX 1026 at 18. Technology, in turn, is defined to mean “Java 2 Micro Edition” (i.e., not the Java 2 Standard Edition that is referenced in TX 610.1). See id. at 18, 19. Thus, even assuming former Danger employees who now are at Google ever saw TX 1026—and there is no evidence to support such an assumption—that has no bearing on the meaning or possible relevance of TX 610.1.

3



1053

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 RESPONSE TO NOTICE RE SECOND PHASE OF TRIAL

Judge: Honorable William H. Alsup


In the event that a verdict is returned on Thursday, May 3 (or Friday, May 4), the parties have no objection to starting the Phase 2 on Monday, May 7.

The parties have met and conferred to resolve the only witness problem that may have interfered with the Court’s proposal. Oracle had identified Mr. Bornstein, a former Google engineer who also testified in Phase 1, as the first witness for its case in chief. But because of a pre-planned trip, Mr. Bornstein was scheduled to be out of town next week. The parties have therefore reached a compromise to accommodate Mr. Bornstein’s schedule. Specifically, Google has agreed to stipulate to the admissibility of various trial exhibits at the beginning of Oracle’s case in chief. In addition, Oracle may present Mr. Bornstein out of order as part of Oracle’s case in chief next Thursday, May 10. Google may thereafter examine Mr. Bornstein in full as part of Google’s case in chief; Google’s examination will not be limited to the scope of Oracle’s examination. Oracle’s cross/rebuttal examination and Google’s rebuttal examination may then follow.

Having resolved the sole potential witness issue, the parties are not aware of anything else that might interfere with the Court’s scheduling proposal.

1


Dated: May 2, 2012

MORRISON & FOERSTER LLP

By: /s/ Marc David Peters

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 telephone fax]

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: May 2, 2012

KEKER & VAN NEST LLP

By: /s/ Matthias A. Kamber

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

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

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

KEKER & VAN NEST LLP
ROBERT A. VAN NEST - # 84065
[email]
CHRISTA M. ANDERSON - # 184325
[email]
DANIEL PURCELL - # 191424
[email address telephone fax]

Attorneys for Defendant
GOOGLE INC.



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