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Oracle v. Google - Day 6, Patent Phase, Filings ~mw
Tuesday, May 15 2012 @ 10:00 AM EDT

The further we go into the this trial the heavier the paperwork has become with no fewer than 26 documents on today's list. Because of that volume we will not be able to address all of them in detail or provide them in text, at least initially, but here are the highlights:

Motions for Judgment as a Matter of Law - Patent Phase

Both parties have filed a motion for judgment as a matter of law with respect to the patent phase of the trial. For its part, Google argues (1151 [PDF]):

  • Oracle failed to provide proof of infringing acts or of sale of the accused software (the second part of this argument is weak for it would mean any distribution of infringing software short of a sale does not infringe);
  • Oracle failed to present any evidence of literal infringement, relying exclusively on the doctrine of equivalents (i.e., the accused software include elements that, while not exactly as described in the patent claims, were sufficiently equivalent to cover that element), and Oracle never disclosed that theory in its infringement contentions;
  • Oracle relied on expert testimony that incorporated improper claim construction that is in conflict with the claims construction provided by the Court;
  • Oracle improperly broadened its claims in the '104 patent by filing a broadening continuation more than two years after the the issuance of the original patent as barred by 35 U.S.C. § 251; and
  • Google cannot be found to have willfully infringed because of insufficient notice of the claim of infringement.
Oracle only provides an outline of what it intends to argue in each JMOL motion (1152 [PDF]), but it is essentially that the Court can find infringement without the need of a jury, none of Google's equitable defenses apply (estoppel, laches, waiver, or implied license), and none of Google's alternative defenses were sufficiently argued by Google (patent misuse, use by the U.S. government, express license, or the doctrine of unclean hands). Subject to seeing their respective briefs and responses, I suspect Oracle wins on the issue of alternative defenses. I suspect everything else will remain in the pot for the jury.

Stipulations

The Court has also granted one stipulation while the parties have advanced an additional stipulation. The Court ordered that the issue of willfulness with respect to patent infringement be submitted to the jury in Phase 2, the patent infringement liability phase, rather than in Phase 3. (1136 [PDF]) Meanwhile, the parties submitted a stipulation that a jury finding of direct infringement by Google will also constitute a finding of indirect infringement by Google. (1139 [PDF]) This stipulation would only be binding on the parties in this trial and could not be used to establish liability against any other party, e.g., handset manufacturers producing Android phones. Expect this stipulation to be granted, as well.

Jury Instructions and Special Verdict Form

The parties have continued to argue over the final jury instructions for Phase II. Oracle argued (1128 [PDF]) that "symbolic reference" could not be limited to string-based or character-based to the exclusion of numeric-based. Oracle also objects to the phrase "that is resolved dynamically rather than statically" in the definition of "symbolic reference." This is the case of terms being used to have a substantially different meaning in the context of a patent than they do in the real world, for (according to Oracle) the '104 patent uses:

... “static” and “dynamic” as adjectives to characterize numeric and symbolic references, respectively: “[T]he main interpretation routine determines if the data reference is static, i.e., numeric, or dynamic, i.e., symbolic . . . .”
Oracle argues that Google is trying to confuse the jury by using these terms in their more traditional sense and points to the Claim Construction Order for support of its position:
A numeric data reference was one that identified data directly by its memorylocation address. For example, the command “load the data stored in memory slot 2” contains a numeric reference to the data stored in slot 2 (col. 1:26–41). The claimed invention would use a static subroutine to interpret this numeric data reference — all it would have to do is go get whatever data is stored in slot 2 . . . .

A symbolic data reference, on the other hand, did not identify data directly by its memory-location address. Instead, a symbolic reference identified data by a “symbolic name” (col. 1:64–67). For example, the command “load the data called y” contains a symbolic reference to the data called y. The claimed invention would use a dynamic subroutine to interpret this symbolic reference — it would have to figure out that “y” means “17” or that “y” means “the data stored in memory slot 2,” and then get the data called y (col. 5:13–19).

Google responds (1134 [PDF]) that the issue of these definitions was settled long ago, and Oracle never raised an objection at that time. To allow this objection now would be prejudicial to Google because Google has operated under the long-standing Court interpretation of these terms. Moreover, as Google points out, Oracle's own expert, Dr. Mitchell equated the term "runtime" with "dynamic," undermining Oracle's now claimed position.

Google, in its objection to the final instructions and special verdict form (1132 [PDF]) asks that:

  • the actual phones accused of infringement be identified in the special verdict form (Instruction 8);
  • the instruction "[d]istributing or offering a product for free constitutes a use or sale" be stricken as unsupported by law (Instruction 14 - this is consistent with Google's JMOL);
  • the inclusion of "mobile service providers" in Instructions 19 and 20 be stricken because it suggests such providers are direct infringers when no evidence has been introduced to support this statement;
  • the inclusion of the phrase "should have known" when referring to knowledge of the patent in the second prong of the indirect infringement test (Instruction 21);
  • the "willful blindness" instruction (Instruction 23).
    Beyond those objections, Google suggests the correction of some typos or inconsistencies.

    It would appear from the latest draft of the jury instructions and special verdict form (1141 [PDF]) that the Court has rejected Oracle's objections (see Instruction 11) and some of Google's objections, but it appears to have responded to Google's objections by removing Instructions 19 and 20 from the earlier draft, modifying old Instruction 21 (now Instruction 18) by removing the "should have know" language, and removed old Instruction 23. We should learn today what the final instructions and special verdict form for Phase II are.

    Copyright Infringement Liability - Issues of Law

    Finally, the parties have fired what surely must be their final salvos on the issue of copyright liability (Google - (1137 [PDF]; Oracle - 1138 [PDF]). The Court cannot postpone forever dealing with these issues as they have now become the core of copyright infringement liability.

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

    Docket

    05/13/2012 - 1127 - Witness List by Oracle America, Inc. Rolling List of Next Ten Witnesses. (Muino, Daniel) (Filed on 5/13/2012) (Entered: 05/13/2012)

    05/13/2012 - 1128 - OBJECTIONS to Jury Instruction and Request for Ruling Regarding "Symbolic Reference" by Oracle America, Inc.. (Jacobs, Michael) (Filed on 5/13/2012) (Entered: 05/13/2012)

    05/13/2012 - 1129 - MOTION TO ADMIT STATEMENT FROM GOOGLES INTERROGATORY RESPONSE filed by Oracle America, Inc.. Motion Hearing set for 5/14/2012 07:30 AM before Hon. William Alsup. Responses due by 5/13/2012. (Holtzman, Steven) (Filed on 5/13/2012) (Entered: 05/13/2012)

    05/13/2012 - 1130 - RESPONSE (re 1126 MOTION TO DEFER PHASE THREE PENDING RESOLUTION OF REMAINING LIABILITY ISSUES ) Google's Memorandum in Opposition to Oracle's Motion to Defer Phase Three filed byGoogle Inc.. (Baber, Bruce) (Filed on 5/13/2012) (Entered: 05/13/2012)

    05/13/2012 - 1131 - STIPULATION WITH PROPOSED ORDER re Case Management and Phase 3 Issues filed by Google Inc.. (Van Nest, Robert) (Filed on 5/13/2012) (Entered: 05/13/2012)

    05/13/2012 - 1132 - OBJECTIONS to re 1121 Order to Final Charge to the Jury (Phase Two) by Google Inc.. (Van Nest, Robert) (Filed on 5/13/2012) (Entered: 05/13/2012)

    05/13/2012 - 1133 - RESPONSE (re 1129 MOTION TO ADMIT STATEMENT FROM GOOGLES INTERROGATORY RESPONSE ) filed byGoogle Inc.. (Attachments: # 1 Exhibit A)(Van Nest, Robert) (Filed on 5/13/2012) (Entered: 05/13/2012)

    05/13/2012 - 1134 - RESPONSE to re 1128 Objection Google's Opposition to Oracle's Untimely Claim Construction Motion by Google Inc.. (Van Nest, Robert) (Filed on 5/13/2012) (Entered: 05/13/2012)

    05/13/2012 - 1135 - RESPONSE (re 1125 MOTION for Summary Judgment re Copyright Damages ) ORACLE AMERICA, INC.S OPPOSITION TO GOOGLES MOTION FOR SUMMARY JUDGMENT RE: COPYRIGHT DAMAGES filed byOracle America, Inc.. (Holtzman, Steven) (Filed on 5/13/2012) (Entered: 05/13/2012)

    05/14/2012 - 1136 - ORDER GRANTING STIPULATION RE PATENT WILLFUL INFRINGEMENT by Hon. William Alsup granting 1131 Stipulation.(whalc1, COURT STAFF) (Filed on 5/14/2012) (Entered: 05/14/2012)

    05/14/2012 - 1137 - TRIAL BRIEF Google's May 14, 2012 Copyright Liability Trial Brief by Google Inc.. (Van Nest, Robert) (Filed on 5/14/2012) (Entered: 05/14/2012)

    05/14/2012 - 1138 - RESPONSE to re 1116 Trial Brief Oracle's May 14, 2012 Copyright Liability Reply Brief by Oracle America, Inc.. (Attachments: # 1 Exhibit A)(Jacobs, Michael) (Filed on 5/14/2012) (Entered: 05/14/2012)

    05/14/2012 - 1139 - STIPULATION WITH PROPOSED ORDER Re Indirect Patent Infringement filed by Google Inc.. (Baber, Bruce) (Filed on 5/14/2012) (Entered: 05/14/2012)

    05/14/2012 - 1140 - PROPOSED JURY INSTRUCTIONS GIVEN BEFORE MAY 14 CONFERENCE. Signed by Judge Alsup on May 14, 2012. (Attachments: # 1 Draft Special Verdict Form)(whalc1, COURT STAFF) (Filed on 5/14/2012) (Entered: 05/14/2012)

    05/14/2012 - 1141 - FINAL DRAFT OF JURY INSTRUCTIONS. Signed by Judge Alsup on May 14, 2012. (Attachments: # 1 Special Verdict Form)(whalc1, COURT STAFF) (Filed on 5/14/2012) (Entered: 05/14/2012)

    05/14/2012 - 1142 - Witness List by Google Inc. Rolling List of Next Ten Witnesses. (Van Nest, Robert) (Filed on 5/14/2012) (Entered: 05/14/2012)

    05/14/2012 - 1143 - DOCUMENT E-FILED UNDER SEAL re 1122 Order on Administrative Motion to File Under Seal ORACLES MOTION TO EXCLUDE PORTIONS OF RULE 706 EXPERT REPORT OF DR. JAMES KEARL by Oracle America, Inc.. (Holtzman, Steven) (Filed on 5/14/2012) (Entered: 05/14/2012)

    05/14/2012 - 1144 - REDACTION to 1122 Order on Administrative Motion to File Under Seal ORACLES MOTION TO EXCLUDE PORTIONS OF RULE 706 EXPERT REPORT OF DR. JAMES KEARL [REDACTED] by Oracle America, Inc.. (Holtzman, Steven) (Filed on 5/14/2012) (Entered: 05/14/2012)

    05/14/2012 - 1145 - MOTION Exclude Certain Witnesses from the Damages Phase filed by Google Inc.. Responses due by 5/29/2012. Replies due by 6/5/2012. (Van Nest, Robert) (Filed on 5/14/2012) (Entered: 05/14/2012)

    05/14/2012 - 1146 - MOTION in Limine To Exclude Evidence of Google's Android-Related Revenues Until Oracle Proves a Causal Nexus with the Infringement filed by Google Inc.. Responses due by 5/29/2012. Replies due by 6/5/2012. (Van Nest, Robert) (Filed on 5/14/2012) (Entered: 05/14/2012)

    05/14/2012 - 1147 - DOCUMENT E-FILED UNDER SEAL re 1122 Order on Administrative Motion to File Under Seal EXHIBITS TO CORRECTED DEARBORN DECLARATION IN SUPPORT OF ORACLES MOTION TO EXCLUDE PORTIONS OF KEARL REPORT 1046 by Oracle America, Inc.. (Holtzman, Steven) (Filed on 5/14/2012) (Entered: 05/14/2012)

    05/14/2012 - 1148 - REDACTION to 1122 Order on Administrative Motion to File Under Seal, 1046 Declaration in Support, EXHIBITS TO CORRECTED DEARBORN DECLARATION IN SUPPORT OF ORACLES MOTION TO EXCLUDE PORTIONS OF KEARL REPORT [REDACTED] by Oracle America, Inc.. (Holtzman, Steven) (Filed on 5/14/2012) (Entered: 05/14/2012)

    05/14/2012 - 1149 - RESPONSE (re 1146 MOTION in Limine To Exclude Evidence of Google's Android-Related Revenues Until Oracle Proves a Causal Nexus with the Infringement ) ORACLE AMERICA, INC.S OPPOSITION TO GOOGLES MOTION IN LIMINE TO EXCLUDE ANDROID REVENUES filed byOracle America, Inc.. (Holtzman, Steven) (Filed on 5/14/2012) (Entered: 05/14/2012)

    05/14/2012 - 1150 - RESPONSE (re 1145 MOTION Exclude Certain Witnesses from the Damages Phase ) ORACLE AMERICA, INC.S OPPOSITION TO GOOGLES MOTION TO EXCLUDE CERTAIN WITNESSES FROM THE DAMAGES PHASE filed byOracle America, Inc.. (Holtzman, Steven) (Filed on 5/14/2012) (Entered: 05/14/2012)

    05/14/2012 - 1151 - MOTION for Judgment as a Matter of Law on Counts V and VII of Oracle's Amended Complaint filed by Google Inc.. Responses due by 5/17/2012. (Baber, Bruce) (Filed on 5/14/2012) (Entered: 05/14/2012)

    05/15/2012 - 1152 - MOTION for Judgment as a Matter of Law Outline of Oracle America, Inc.'s Rule 50(a) Motion at the Close of All Evidence In Phase Two filed by Oracle America, Inc.. Responses due by 5/17/2012. (Jacobs, Michael) (Filed on 5/15/2012) (Entered: 05/15/2012)

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


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