Our reporter is in the courtroom today, you'll be happy to know. And we have his first report. So far, there has been oral argument on the pretrial motions. But keep on stopping by, as we'll be covering the whole day, including a partial or total verdict from the jury on phase one.
Mark has all the motions they are arging about and all other weekend filings as PDFs here, so you can follow along.
If you recall, the trial has been split up into three parts. The copyright phase is ended, with the jury trying to reach a unanimous verdict. So they are beginning the patent phase, and that means more motions in limine, arguing about who can testify and what they are allowed to say in front of the jury.
[ Recap of the day: Google won everything but the one issue that the judge has to decide anyway, the API SSO issue. The jury found, as they had been instructed to assume for the purposes of deliberation, that APIs can be copyrighted, the structure, sequence and arrangement of APIs, but that is by no means established. The same question, in a b) section, asked if fair use excused any infringement if found, and the jury couldn't resolve that issue. But the judge has to decide whether or not that is true, that APIs can be protected by copyright. That comes later this month. Meanwhile, Oracle prevailed only on 9 lines of code that Google admitted prior to trial to have included by mistake and then removed from current Android. Oracle's own expert, the judge pointed out in court, valued those 9 lines of code at zero. This is 9 lines out of millions. So that means, if we are looking at damages, that so far Oracle has won nothing. There is no liability. You can't have infringement without considering fair use, Google asserts, and there will be briefing on that. Somebody has to decide that fair use issue. And then the judge has to decide about the API copyrightability issue. If he rules that APIs can't be copyrighted, as the EU Court of Justice just ruled, then fair use is moot. And Oracle takes nothing at all from the copyright phase of this litigation, and this was heralded far and wide by Oracle people as the big ticket item, if you recall.
Don't let anyone fool you. Today was a major victory for Google. That's why after the jury left, our reporter says that Google's table was laughing, and Oracle's mighty glum. And I see some journalists are surprised or confused, because they have been listening to a steady flow of Oracle FUD from the wrong people. Remember the headlines about this being a $6 billion dollar case? It never was and now it never will be. Oracle attorney Michael Jacobs was reported to have visited the press room at the courthouse during the trial for a talk with the gathered journalists. So did a PR person from his firm. I mean, come on, fellas. And that doesn't even count the huge stream of misinformation from ... well, you know. And look at the outcome. Not what you were told to expect, is it? Live and learn, y'all. Live and learn. If a person is paid by Oracle, why would you take it as necessarily so? And
here's why the API decision matters so much.]
Jump To Comments
[Update 1, Update 2, Update 3
Update 4, Update 5, Update 6
Update 7, Update 8, Update 9
Update 10 ]
[Update 6: The judge has stated,
pending judgment as a matter of law, that there is "zero finding of
copyright liability" other than the 9 lines of code to which Oracle's
damages report attributes no value. A good day for Google overall. The Washington Post quotes him like this: "There has been zero finding of liability on copyright, the issue of fair use is still in play,” Alsup said after the verdict was read.]
Here's mirror_slap's first report, which takes us up to the first break:
Oracle v. Google, Monday May 7, 2012 So the SEC filing is now part of the record. Aren't you glad mirror_slap is there again? The tweeting journalists didn't even mention that. Meanwhile I see reports on what Safra Katz is wearing, Chanel jackets and gold buttons and what not. Who cares about that? I certainly don't. I'm sure you guys care even less. I don't mind color commentary, actually, but only after the important things are covered. Here's the SEC filing and why it matters.
Mr. Jacobs is citing the Tim Lindholm book, regarding a footnote on patents.
Google: [Robert Van Nest] Regarding Jonathan Schwartz, he said that Sun uses its patents for defensive purposes, not offensive purposes. "Innovate, not litigate". Mention is made of the filing with the SEC of the fact that Mr. Schwartz' blog as CEO was indeed corporate.]
Google: There is nothing about the 104 from Lindholm, regarding one line in a book published in 1997 that doesn't apply to any patent in this case.
"I'd rather not call Mr. Schwartz."
685 patent is relevant.
Whole chapter is dropped in second edition in 1999.
Google: Tim Lindholm had no involvement in Dalvik. No discussion about any of these patents in suit with anyone at Google.
Early on he was in a couple of meetings to introduce his former colleagues at Sun.
If they want to put on a side show...
Oracle: The chapter was dropped, as the documentation was refined, the editors decide to drop it.
Judge: Asks questions regarding whether Mr. Lindholm is here, to get at the question of what was intended. Google cannot produce Lindholm; he is in San Francisco but is not in the building.
Oracle: Lindholm knew about the technology and the rights.
Google: I do think, if Your Honor is inclined to do that, we should ask Mr. Lindholm.
Judge: [He is annoyed that Lindholm isn't here.]
Google: Wants this not to happen in front of the jury.
Judge: Will allow it. Here's why: it speaks to willfulness. What troubles me the most about it, while he wrote about the 685, he didn't write about the 104.
Judge: [To Oracle] You cannot show that email to the jury until you establish the foundation for it. You must start with the book and do it the hard way. Somehow you will have to equate the two. No witness on either side will admit to anything that would favor the other side.
Judge: [With regard to Mr. Schwartz]
1. In litigation, I've practiced law long enough to recognize a spring gun. When he was asked, did Sun ever make a decision not to sue, and it was a yes or no question, but he said that they didn't have grounds to sue. It communicates so much privileged communications. Even if it's true that they felt they had no grounds to sue on, unless they communicated it to Google... had a motion to strike been issued, I would have granted it immediately ("In a heartbeat"). The witness should have been told not to utter statements like that, and yet it came out. If Mr. Schwartz is going to testify again on matters that the judge will decide, it will only be in front of the judge, because I can sort out the attorney-client privelege. If there is anything for the jury, then he will testify in front of the jury. The question is, does it speak to willfullness.
This broad pronouncement from Jonathan Schwartz is probative of nothing, unless we open up the attorney-client privilege.
Can the judge instruct the jury to disregard the previous testimony? I have not yet ruled on this. I am not going to strike it at this late date. The question is for the closing arguments.
[Back to Tim Lindholm] I think that it's not the same kettle of fish, not the same analysis. Important caveat: cannot even use the email in your Oracle opening statement. You have not connected the 685 and 104.
Andy Rubin motion, [Christa Anderson]... exclusion of testimony... what Google did and didn't do in terms of investigating Sun's patent portfolio. Goes to the period where neither Sun nor Oracle disclosed the patents in suit. It would confuse the jury.
Judge: What is the law on this... the willful blindness.
Google: Plaintiff has to show knowledge of the patent. Standard is higher than negligence or indifference. It is not enough to show that a company made a decision not to investigate another company's patents. You have to show that an internal attorney had told the company that they needed to investigate, to establish willful blindness. A deliberate act not to learn of a specific patent. Sun/Oracle didn't talk patents with Andy Rubin. It wasn't until Eustace sent an email in the summer of 2010, "we are not going to pay for IP that you are not going to disclose to us", which would have forced on Google their going out to look at all the Sun/ Oracle patent portfolio.
Oracle: Opposition to this motion-- series of emails in which patents were discussed. Andy Rubin 2006, "Sun threatened to sue us over patents, so we walked away from discussions".
This is a case of intense interactions between these companies. Deliberately made no effort to do any investigation. Gets the whole analysis backwards. Google knew how extensive Sun's patent portfolio was. It ups the ante on the other company to do the analysis of the portfolio. This case really is like GlobalTech. As of July 20, 2010, Google knew of the 104. If Google would stipulate to indirect infringement, then this would go away.
Google: With regard to the evidence that Oracle described, this is not relevant. What did Mr. Rubin and Google do to investigate these patents? Clearly in these documents, there would need to be licenses if Google chose to take Sun's IP as a part of entering into a partnership.
With regard to the 104 patent, Mr. Jacobs wants to disclose Rubin email based on July 2010, but Mr. Lindholm has testified that he never engaged in a patent investigation. Misleading for the jury.
Judge: Motion denied. It may be true that this item would prove willfullness, but the party with the burden of proof must proceed one step at a time. I agree that one item of testimony is not enough to carry. This is an easy problem to solve, because I will direct the jury regarding what the law is.
Motion to reject Peter Kessler by Google:
No evidence of alleged use of the 104 patent by Oracle, but they don't address the crux of the matter... the steps taken to turn off the features used from the 104 (Mr. Van Dette). Mr. Van Dette didn't do the modifications. The reason that we are having this problem is that Oracle has a foundation problem. They never disclosed to Mr. Kessler.
Judge: Rule 26 only requires that he ...
Kessler wasn't disclosed. Why are you trying to bring him in?
Oracle: [Mr. Norton] Kessler will be a fact witness, not an expert witness. Google will try to say that Mr. Van Dette was lying about making the changes to the code. Mr. Berger then took those changes, and loaded them on an Android phone.
Google disclosed PK on their witness list for performance issues.
Judge: What are my rules on that?
Foundation witness for who?
Oracle: Dr. Mitchell. His report relies upon work by a couple of engineers, who will need to be put on the stand.
Google: Kessler is not just a fact witness. It is not correct or accurate.
Judge: They say they will call Van Dette.
Google: They can do that. Page 29 of Van Dette report... " modifications were made."
Berger, page 5, "..."
Judge: Is Mr. Berger a witness?
Google: Oracle wouldn't make him available.
Oracle: We don't intend to call Kessler as a foundation witness.
Judge: Did Berger make the changes?
Oracle: Mr. Berger made images that were loaded onto Android phones.
Oracle: Google has become confused.
Judge: Does Dr. Mitchell in any way rely on what Mr. Berger did?
Judge: Does Dr. Cockburn rely on Berger?
Judge: Why not produce him (Berger) for deposition then?
Oracle: We didn't think we needed him.
Judge: Is Berger an employee of Oracle?
Judge: Here's the ruling. With regard to Mr. Berger- want him made available for a half-day deposition, by Thursday, for fairness.
Oracle: The Oracle employee lives and works in Israel.
Judge: I will give you a little more time. Refers to spoon-feeding of expert witnesses. Both of you have done it. You have to get Mr. Berger over here before phase 3 of the trial.
Judge: [To Google] Do you want Mr. Berger here?
Google: Would like to have him here.
Judge: [Gives Oracle a little extra time... had said by this Thursday, but gives them the weekend.]
Regarding compatibility testing.
Google: Compatibility test suite doesn't tell you anything definitive.
520 is targeted at development kit. Regarding the creation of an array, a complete red herring. Believe it would be prejudicial.
Oracle: [Long argument about what the CTS tests, who does the testing, and the "intricate web" between Google and its handset manufacturers.]
Google: Oracle might have a point if the CTS had anything to do with the point.
Oracle: [Long argument...]
Oracle: Tight web between Google and the handset makers. Will put on evidence that the handset makers do run the CTS. The proof will be in the documents.
Judge: Motion denied. This is not prejudicial. It proves a tiny piece of their case.
End of motions in limine.
Judge: What is the difference between an ecosystem, what is the platform? We are getting into higher and higher platitudes.
Oracle: [Tries to define the platform, and that the developers comprise the ecosystem.]
Google: Objections to opening statements will come next.
[ 9:05 15-minute break ]
While we await the next report, here's more on the serious worries people are expressing about APIs possibly becoming copyrightable, if Oracle prevails, from Robert McMillan's article today in Wired, "Could an Oracle Win Against Google Blow Up the Cloud?":
The conventional wisdom in the coder community has been that it’s fine to reproduce the interface of someone else’s APIs, so long as you don’t actually copy their software. So if the court finds that APIs are copyrightable, it could have major implications for any software that uses APIs without explicit permission — Linux for example. But it could affect things in the cloud, where there are several efforts to clone Amazon’s Web Services APIs. As you see, Google isn't alone in being astonished and surprised to even have to respond to such a claim. It certainly could never have anticipated it.
“If APIs can be copy-protected, that would be incredibly destructive to the internet as a whole for so many different reasons,” says George Reese, Chief Technology Officer with enStratus Networks, a seller of cloud management services. “But with respect to cloud, in particular, it would put any company that has implemented the Amazon APIs at risk unless they have some kind of agreement with Amazon on those APIs.”
An open source effort called OpenStack is the most prominent example of a project that mimics Amazon’s APIs, and the case could give Amazon legal grounds to seek licensing deals from OpenStack users such as Hewlett-Packard and Rackspace.
But other projects reproduce Amazon’s APIs, including Citrix’s CloudStack project and middleware such as Jclouds and Fog.
“The problems that would face cloud computing are many of the same problems we’d see, frankly, all over the internet if APIs were copyrightable,” says Julie Samuels, an attorney with the Electronic Frontier Foundation who has been following the trial....
On the bright side, at least for open source hackers, is the possibility that a ruling in favor of copyright-protecting APIs could push cloud providers to come up with new, open, standard APIs. But it’s not much of a sliver lining, according to enStratus’s Reese. “While that’s potentially useful for cloud [computing],” he says. “I am much more concerned about the implication for the internet as a whole. Or, more realistically, America’s role in building internet companies. No other country is going to honor the idea of copyrighted APIs.”
Update: Uh oh. Mirror_slaps says there's a question from the jury:
The judge is back. A juror said that they had conversations over the weekend about the trial. Google has questions of the nature, extent of disclosure from other jurors.
Update 2: The next report on the juror issue:
About to bring back the jury, with the judge telling them what the law is, tell them that it is not relevant, and ask whether anyone on the jury would be swayed by what the juror has said. All parties agree to this. The issue was apparently about how long patents last, which isn't relevant to the copyright phase the jurors are deliberating at the moment. And the juror's husband told her something that isn't factual, which is why the judge clarified the law. My question is, why is she talking with her husband about this trial? Or was it a random remark? Things are going forward. Can you imagine if there was a mistrial now? The expense, the effort of a do-over. Here are the details:
Oracle v. Google, Monday May 6, part 2
[ Google was using a couple of attorneys in the first part of today's testimony who were new to me, and to the court reporter. She came up to get their cards during the break. My guess is that they are patent law specialists. ]
[The 15-minute break that started at 9:05 has now stretched to 9:30.]
Objections to Opening Statements
Google: Two disputed slides in plaintiff's opening.
Slide 34... assumed that this would go out with Judge Alsup's ruling this morning. Another Tim Lindholm email. And they go back to deliberate some more.
Judge: I need to see the email.
Google: TX 326- a long email from Bob Lee to Lindholm, thread. Feb 2009
from Dave Sobota, to Lindholm and Lee... written by Brett Slatkin, passed on to Dave Sobota. Until there is somethign linking in Lindholm, it would be inappropriate to use.
Asking that it not be used in the opening.
Judge: Is it in evidence?
Judge: Motion denied. [ getting a bit peeved? ]
Google: Second slide , TX 1061, page 6...
Judge: What is relevence?
Oracle: Google induces patent infringement by phone makers.
Google: Doesn't go to any of that.
Oracle: Large number of activations each day, Google was willing to look the other way on patents.
Google: Limited to 8 phone models for which they are claiming infringement. Might be relevant in phase 3. Covers ALL activations, not just for the models in question.
Judge: Motion denied. Will allow its use.
Judge: Anything else?
Oracle: Designations... Mr. Morrow, Mr. Morrill...
32, 46.16, r46.17, 46.18, 46.29, 46.192, 46.103,
106, 197,225,262,896,46.2,46.2,46.3,46.4,46.5,46.6,46.7,.46.8,46.9, 46.12-46.19. -- [A whole raft of stipulated exhibits. I couldn't catch them all. I believe that these will be made available by the court, later today or tomorrow.]
Google: Regarding deposition of Mr. Agrawal. All agreed that 3 hours is sufficient.
[ 9:45AM - Nothing more to do for Phase 2; taking a break, waiting on the jury. They were on break during our 9AM break, but there were no further questions from them.]
[ 10:10 back ]
Judge: Why do this as a sidebar?
Google: To avoid further contamination of the jury.
Judge: Let's bring in [the foreman], instruct the jury to stop deliberating until we can find out more.
[Foreman comes in and is seated. ]
One of the jurors has indicated that he/she has had conversations regarding the copyright/patent over the weekend.
Judge: Counsel must object immediately. Do not hold back and then come back later.
What is it that she said?
Foreman: Internal question/answer period. She said that her husband has experience with patents and copyrights. When she was talking with him this weekend, she said that he said that there were ...
Google: Don't want to know what the question was.
Foreman: We said that we were uncomfortable about the discussion, that she was taking what she was learning at home and was applying it to the copyright phase.
Judge: Is that the essence of it, or can you say more without exposing your deliberative process?
Google: Was there anythign else of substance said in the jury room, that wasn't already discussed?
Judge: Was the point that she was trying to make that she was disagreeing with a point of law in the instructions that I had given to the jury?
Foreman: It's what's on each side of the "or" question.
Judge: I think that addresses the general point.
Dawn will take you back to the jury room. Do not deliberate any further. behave as if you are on break until I get to the bottom of this.
Bring in Ms. [the juror in question]
Judge: Come in. [Sits.]
Judge: It has been reported that...
Juror: He is not a patent attorney, he holds 3 patents. It was his birthday over the weekend, and I asked him how long patents lasted. We knew that copyrights lasted 99 years. He said that they last for 17 years.
Judge: And that was what you said in the jury room? [Yes]
Any other discussion with him? [No.]
Google: Please probe any influence either way on her deliberations.
Judge: Has that influenced you in any way? [No]
Judge: Go back to the jury room. Tell them not to deliberate until I give them the green light.
[Juror leaves ]
Judge: Anyone want us to bring in more jurors?
Oracle: No, Your Honor.
Google: [Wants to bring in one more person to gauge whether what she said she said and what the foreman said she said jibes. There were some discrepancies.]
[Discussion of changes in patent law timeframes.]
Judge: Any objection if I say to the jury that the life of the patent is 20 years from date of application and 17 years from date of issuance?
Google: Needs to be said to be irrelevant.
[Jury comes back in]
Judge: You must not discuss this case with anyone. Not your loved ones. You must decide this case based on the law as I instruct you.
[Describes the timeframe, 17 years from issuance, or 20 years from application.] Irrelevant to your decision making. Can understand how it might have come up in the deliberations, but it should not be a factor in your deliberations. Is there anyone over there who thinks that they've heard anything from another juror that would prevent you from reaching a decision in this case? Raise your hand.
[ Nobody does.]
[ break again 10:20 ]
Update 3: The jury says it has a partial verdict. Can't resolve one issue. So we'll be hearing it read shortly. Caleb Garling tweets:
A. Has Oracle proven that Google has infringed the overall structure, sequence and organization of copyrighted works? YES... Judge Alsup, then, will have to rule on the copyrightability of APIs. The jurors couldn't get unanimous on the fair use issue. That's the one they skipped. But it may not matter, in that the judge is on the hook now to be the ultimate decider.
As to the documentation for the 37 Java API packages in question taken as a group: A. Has Oracle proven that Google has infringed? NO...
The rangeCheck method in TimSort.java and ComparableTimSort.Java YES, infringing....
Source code in seven “Impl.java” files and the one “ACL” file? NO, not infringing....
The English-language comments in CodeSourceTest.java and CollectionCertStoreParameters Test.java? NO, not infringing
Update 4: Here's mirror_slap's account:
Oracle v. Google, Monday May 7, part 3 The verdict form is here, if you want to match them up yourself. Even better, they've posted the filled in verdict form [PDF].
11:10am we have verdict... press comes in, Judge Alsup.
Note from jury, Impasse has been reached on the one issue that remains undecided.
Judge: Will bring them in and get the verdict on the remaining parts.
Jury comes in.
Judge: We received your note about the impasse being reached on the one issue that cannot be decided.
Ready to render the verdict now.
Signed and dated? [Yes]
Judge: Marshall will hand it to me, and I will check it to be sure that it is in the proper form.
Judge: The clerk will read the verdict form, with your answers.
Dawn will skip over the one:
1. a. yes [Has Oracle proven that Google has infringed the overall structure, sequence and organization of copyrighted works?]
1. b. unanswered.
2. documentation. no [As to the documentation for the 37 Java API packages in question taken as a group: A. Has Oracle proven that Google has infringed?]
3. [Has Oracle proven that Google’s conceded use of the following was infringing, the only issue being whether such use was de minimis:]
a. yes, infringing. [The rangeCheck method in
b. no, not infringing. [Source code in seven “Impl.java”
files and the one “ACL” file]
c. english language comments, no, not infringing [The English-language comments in
4. a. yes [A. Has Google proven that Sun and/or Oracle engaged in conduct Sun and/or Oracle knew or should have known would reasonably lead Google to believe that it would not need a license to use the structure, sequence, and organization of the copyrighted compilable code?]
b. no. [B. If so, has Google proven that it in fact reasonably relied on such conduct by Sun and/or Oracle in deciding to use the structure, sequence, and organization of the copyrighted compilable code without obtaining a license?]
What does it mean? It means all Oracle won that matters is regarding the APIs, which the judge, unfortunately told the jury to assume were copyrightable, without mentioning to them that he would actually decide that. So unless the judge agrees with Oracle that APIs are copyrightable, Oracle gets pretty much no serious money from the copyright side of the trial.
Of course, there will be more to play out, the patent phase, and then there will be a damages phase to decide how much money Oracle should be paid for 9 lines of code that were admitted to have been a mistake and were donated to Sun/Oracle and included in Java by them. I can't imagine the judge allowing the parties to have to go through damages witnesses about APIs unless he plans to rule them copyrightable, but you never know.
Hilarious. Well, the jury did pretty well, considering all they were *not* told. Clearly they believed Jonathan Schwartz over Scott McNealy. Now it's up to the judge.
And he has the jury now starting the patent phase. They are watching a video about patents.[PJ: Probably this one.] Google, according to James Niccolai, says it will request a mistrial regarding the unanswered question. I was wondering when that would happen. How could it not? Somebody some time has to decide the fair use issue. Who? The parties are told to brief the issue. More briefs, all because the judge postponed ruling on the one issue that matters the most. But as you can see in update 6, above, he has stated that so far, there is no copyright liability found, other than the 9 lines of code, which Oracle's own expert stated have no monetary value. So far, then, Oracle lost big time in the copyright phase. Big time.
Update 5: Google has issued a statement:
"We appreciate the jury's efforts, and know that fair use and infringement
are two sides of the same coin. The core issue is whether the APIs here are
copyrightable, and that's for the court to decide. We expect to prevail on
this issue and Oracle's other claims." Brandon Bailey of Mercury News reports that Oracle declined to comment. Here's what they should say: Sorry, everyone, for costing the courts and Google megabucks to defend copyright claims of no value, and which so far entitle us to zero dollars in damages.
Speaking of damages, David Boies reportedly asked, with the
jury out of the room, for
"infringer's profits" from the nine lines. Judge Alsup said it was "bordering on the ridiculous."
And Oracle's Michael Jacobs has begun his opening statement.
Update 7: And mirror_slap has his final report on that, taking us to the end of the day:
Jury is polled. All answer the the verdict as read, is correct.
Judge: Special jury form will be made of record.
[To jurors: Question 1b. is withdrawn from you as your purview.
Back to the mode where you cannot talk with each other as you hear the evidence. No doing of any homework, no looking at news reports. Your job is to sit back, make the lawyers do all the work. I will tell you at the end of the patent phase what the law will be.]
Judge: I'm going to give you a few minutes, let the lawyers set up. We will go immediately to the patent phase of the case.
Google moves for a mistrial on question 1. Basis cited... given the way the case was presented, you cannot get a partial verdict on one.
Judge: Make a formal motion in writing.
Google: Will get that in tomorrow.
Judge think about whether this simplifies phase 3. Only rangeCheck is for statutory damages.
Oracle: [ Boies] [something about asking for "infringer's profits"]
Judge: I thought that you were only going to be seeking statutory damages?
Judge: Note from jury to Dawn- We need more notebooks for phase 2.
Oracle: Separate damage calculation.
Judge: Do you want all their profits?
Oracle: No, Your Honor.
Judge: This borders on the ridiculous. Now you are changing your tune (adding to the agreed-upon statutory damages). Based on 9 lines of copying out of 15 million? That would ge a big, big stretch.
Oracle: If we were, as a matter of law, able to seek disgorgement on question 1.
Google mistrial briefing tomorrow...
Judge: Zero finding of liability so far. We will use the same briefing schedule. Brief tomorrow, responses by Thursday.
Phase 2 opens
Jury is seated.
Judge: [to jury] Patents. You will hear in a moment what patents are. Authorized by Congress in the Constitution. Gives exclusive right to the holder of the patent to make, use, or sell, the apparatus described in the claim. [Short video from the Federal Judicial Center in Washington, DC.] 2 handouts distributed. One is referenced in the video, so it would be useful to have. Now, has handed out a color-coded item, to be explained later. "An introduction to the patent system."
New, useful, not obvious to one of usual skill in the area.
Field of search.
References (prior art).
Specification abstract, background, drawings, detailed description of embodiment.
Prosecution of a patent.
[ noon. playback ended. ]
Judge: Red underlinings are items in dispute. Non-underlined are conceded.
All 4 limitations have to be proven to show infringement.
Judge: We will get through opening statements for the plaintiff. Remember what I said about what lawyers say is not evidence.
Opening Statement by Oracle's Michael A. Jacobs:
Oracle: [Mr. Jacobs] Spending a minute on the difference between patents and copyrights. Whether the claims of the two patents that we've said that Google infringes are in the Android phones.
"I think that you will be pleased to know that Fair Use is not an issue in a patent case." [smiles from some jurors].
Judge: Going to end early today [12:45]
Android uses Dalvik VM.
Java Platform Components: Java app source code gets compiled to Java bytecode by Java compiler; Java bytecode is loaded into JVM; JVM runs on a computing device.
Compare with Android Platform Components: Java App source code gets compiled by a java compiler. "Go to the Oracle website and download a Java compiler"
[Nobody else in the world makes Java compilers?]
dx tool is bolted onto to bottom of the Java compiler. The dx tool converts Java bytecode to "dexcode." Load onto Dalvik VM. Dexopt (optimization), and bytecode interpreter.
Virtual machines slow things down. We want our phones to turn on instantly. We don't want to wait. Talks about speed slowing down when having to speak through an interpreter. Said that if an interpreter was writing down things, it would take more paper (memory).
When Google developers were trying to get to market (against Microsoft), Google faced a technical challenge. Exhibit TX 23. "If the device is not fast and stable we FAIL". Email from Brian Swetland to Andy McFadden and others Aug 16, 2006.
Exhibit 4015... 104 patent, 520 patent, developed by Java developers back in the 1990's. Solved the same problems, speed and memory utilization.
Google's [alleged] infringement of the '104 patent. James Gosling, inventor, "Method and apparatus for resolving data references in generated code."
This is a re-issue patent . You only have infringement to consider. Google's defence is, "We don't infringe".
The meaning of "Symbolic reference".
Evidence of infringement: Google programmers stated in Android that Android resolves "Symbolic references":
/* Link ( prepare and resolve ) Verification is deferred until later
* this converst symbolic references into pointers
Exhibit 816, Google I/O 2008 "Dalvik VM Internals" presentation by Dan Borenstein, Oracle's "Android Relies on Symbolic Reference to Run Faster" opening argument slide.
Benchmark tests prove Android runs faster because of the '104 patent. Oracle will prove this, using in-house and Stanford experts. Standard industry ways for determining performance.
Exhibit 426, Eric Schmidt, "Speed matters."
'520 patent... has been re-examined. Exhibit 4011. Initialization of static arrays by simulating execution and then creating an efficient method. Needed because the Java bytecode doesn't implement the array initialization well; it's inefficient. [Uses example of shopping for groceries.]
Dispute is on "simulating execution". Google says that they parse, not simulating.
Public class simulator, Exhibit 47.16, shows "simulates execution" in the comments.
Additional layer of proof required of Oracle: Google's knowledge of the patents. We are suing not only Google for their infringement, but also induced infringement. We have to show that Google was willfully blind to Oracle's patents. Brings up book published by Tim Lindholm, mentions the predecessor of the '104 patent, the '685 patent.
Google worried about its Java patent infringement. July 27, 2011 deposition of Andy Rubin.
2007, Google was aware that Sun had patents.
Did Google ever investigate Sun's patent portfolio? question to Andy Rubin.
Google induces patent infringement by phone makers.
Cleanroom is no defense to patent claims.
Google has no excuses. doing all of this without a license. They knew they needed a license.
No issues for the court.
[ adjourn ]
[ Lots of smiles from Google. Mr. Van Nest laughs out loud a few times. Things are rather glum at the Oracle table. ]
Oracle, according to James Niccolai, has issued this statement now:
"The overwhelming evidence demonstrated that Google knew it needed a license and that its unauthorized fork of Java in Android shattered Java's central write once run anywhere principle," it said. That's exactly what the jury did not say, actually. But this is Oracle. What the jury said yes to in question 4 was this:
A. Has Google proven that Sun and/or Oracle engaged in conduct Sun and/or Oracle knew or should have known would reasonably lead Google to believe that it would not need a license to use the structure, sequence, and organization of the copyrighted compilable code? And the jury said Yes, Google had proven that. That is precisely the opposite of Oracle's statement.
Here is an interview by Bloomberg/BusinessWeek showing graphs of the stock market reacting to the news, downward for Oracle, and shooting up for Google. They grok what this decision means. What follows is an interesting interview with Pat Walravens of JMP Securities, who is also an attorney, who talks about the verdict, and whose overall assessment is that this is a difficult case for Oracle overall, including the patent claims.
Update 9: I thought you'd find it interesting to learn that in the later redo of the Oracle v. SAP litigation, where David Boies is also representing Oracle, something very similar was tried regarding infringer's profits. Here the judge called it bordering on the ridiculous. In the SAP case, here how the judge ruled, in the Final Pretrial Order [PDF], on Oracle's various motions in limine:
5. Plaintiff’s Motion in Limine No. 5 to exclude testimony by SAP’s expert
Stephen Clarke regarding a calculation of infringer’s profits that includes a deduction of expenses from defendants’ revenues is DENIED. Plaintiff argues that because the infringement was willful, infringer’s profits should be equal to gross revenues, and that defendants should not be permitted to offset any of their gross revenues by subtracting expenses. However, the court finds no support for this proposition. Isn't that interesting, that David Boies is using the same extreme strategy in both cases, and got knocked down by two judges on it so far. That order is dated May 29, 2012, and the judge presiding is the Hon. Phyllis J. Hamilton.
The language of 17 U.S.C. § 504(b) does not support a rule that overhead expenses cannot be deducted from gross revenues to arrive at profits where the infringement was deliberate or willful. Section 504(b) provides that “[i]n establishing the infringer’s profits, the copyright owner is required to 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.” There is no mention of willful infringement in § 504(b) – only in § 504(c) – which relates to statutory damages. The language of § 504(c) shows that where Congress intended to punish willful infringement by authorizing different remedies depending on the defendant’s culpability, it clearly knew how to do so. Section 504(b) makes no distinction
between willful and innocent infringers. In addition, while the Ninth Circuit’s Model Instruction 17.27 may be considered a guide, the Ninth Circuit does not adopt the Model Instructions as authoritative statements of the law. Dang v. Cross 422 F.3d 800, 805 (9th Cir. 2005). Even less should a “Comment” to a Model Instruction be considered an authoritative statement of the law. Moreover, Model Instruction 17.27 is clearly labeled, “Copyright – Damages - Willful Infringement” under 17 U.S.C. § 504(c)(2), which relates to statutory damages which are not sought by plaintiff here. It is Model Instruction 17.24, “Copyright – Damages – Defendant’s Profits” which relates to the measure of damages under 17 U.S.C. § 504(b)
which are sought by plaintiff here. Tellingly, there is no Model Instruction that sets forth the standard plaintiff urges the court to adopt. Nor does the Ninth Circuit’s decision in Kamar Int’l v. Russ Berrie and Co., 752 F.2d 13 1326, 1331-31 (9th Cir. 1984), which is cited in the Comment to Model Instruction 17.27, clearly support the statement in the Comment that defendants’ expenses are generally
“denied where the defendant’s infringement is willful or deliberate,” since the court in Kamar had previously determined that the defendant was not a willful infringer. To the extent that the parties dispute which categories of expenses can be deducted (assuming defendants meet their burden of proof), that is a matter for the court, not the
jury, to decide.
6. Defendants’ Motion in Limine No. 1 to exclude evidence and argument regarding new claims relating to lost profits and infringer’s profits is GRANTED in part and DENIED in part. The motion to preclude plaintiffs from reversing their approach to deductible expenses in connection with the infringer’s profits claim is GRANTED, for the reasons set forth above with regard to plaintiff’s Motion in Limine No. 5. The motion to exclude testimony and other evidence regarding the calculation of ongoing support/maintenance revenues (after 2008) up to the time of trial, and regarding the increased profit margin percentage applicable to the added revenue, is DENIED. The court is not persuaded that judicial estoppel applies under these facts; and finds further that
the supplemental or updated report of Oracle’s expert Paul Meyer is not untimely given that the bulk of the claimed damages were not incurred until after the discovery deadlines preceding the first trial. Thus, it would be unfair to disallow this evidence, subject to plaintiff’s establishing that the claimed damages flow from the pre-2008 infringement. In
addition, however, both sides shall make their experts available before trial for further short depositions on this issue and there shall be full disclosure of the claimed damages and any defense thereto.
7. Defendants’ Motion in Limine No. 2 to exclude evidence previously offered
solely to support excluded damages theories is DENIED in part and DEFERRED in part. The question whether plaintiff may offer evidence to support the theory of hypothetical license damages (including up-sell and cross-sell and saved development costs) has been resolved by the court, most recently in the ruling on plaintiff’s motion for clarification. Defendants have provided examples of evidence relating to “license factors,” “risk acceptance,” “expected financial gains,” and the “risk to plaintiffs’ investment.” However, because defendants have not sufficiently identified the particular items of evidence they seek to have excluded, and because plaintiff argues that some of the evidence may well be relevant to causation, the court is unable to rule on this part of the motion, and defers further consideration until the further conference to be held on June 8, 2012.
8. Defendants’ Motion in Limine No. 3 to exclude evidence and argument regarding TomorrowNow’s criminal conviction is GRANTED. Any evidence of willfulness that would be reflected by the guilty plea or conviction is irrelevant to any issue being tried in the case in light of defendants’ stipulation to liability. In addition, this evidence may not be used for impeachment purposes pursuant to Federal Rule of Evidence 609 to impeach the testimony of defendants’ witnesses, as it was the corporation TomorrowNow that pled guilty, not any of the individual executives employed by defendants SAP AG, SAP America, Inc., or TomorrowNow. The corporate conviction has no bearing on the credibility of any individual witness who may be employed by a defendant and no individual witness has been him or herself convicted, such that their own conviction might be employed for
impeachment. Moreover, unlike the situation in Hickson Corp. v. Norfolk S. Ry. Co., 227 F.Supp. 2d 903, 907 (E.D. Tenn. 2002), liability in this case has been conceded, and is therefore not an issue to be decided by the jury.
9. Defendants’ Motion in Limine No. 4 to prohibit plaintiff from referring during the trial to “theft” or “stealing” of software by defendants is GRANTED. Defendants have stipulated to liability for copyright infringement, and the jury will be so advised. Balancing the potential for prejudice and the value to plaintiff of characterizing defendants’ conduct as theft, the court concludes that the use of the words “theft” or “stealing” would be
inflammatory and would likely be unduly prejudicial to defendants, and is furthermore unnecessary given defendants’ stipulation to liability. Moreover, the use of words associated with criminal conduct could potentially confuse the jury about the nature of this case and what they will be asked to find. Plaintiff may argue that defendants “copied,” “took,” or “used” the software “without authorization,” but may not characterize defendants’ conduct as “theft” or “stealing.”
Update 10: All the trial exhibits are now available as PDFs here. Some are also done as text. Look for the date nearest the day, as they are listed by the date they were entered, which could be a day or so after the date of their use in the courtroom.