The jury continues to deliberate in the patent phase of the Oracle v. Google trial. They just sent in a question, basically asking if they are allowed to consider an aspect of Dr. Terence Parr's testimony as evidence that Android does not do what the '520 patent describes, which of course they are, as Google points out. That was the point of his testimony, and it's in evidence so it's fair game to consider it.
The judge asks both sides if they want a five-minute-each opportunity to argue the point before the jury, and Oracle says no. So he just tells the jury that he can't give them guidance on fact issues other than what he's already given them. That's their job. He tells the lawyers if he says yes, because of the exact wording of their question, they'll think he's telling them to find for Google. Judges do have to be very careful not to tilt the field. Surely, however, there's a way to answer the question with a yes, without tilting things. They are for sure allowed to consider that testimony and drawing whatever conclusions they think would be proper.
I can't imagine what the jury is thinking now, but I surely do see all the appeals issues mounting and mounting. And it's very clear that once again this is a jury that is divided and struggling to reach a unanimous conclusion. Our reporter in the courtroom provides us with the details.
Here's his report:
Thu May 17 12:32:42 PDT 2012
ZDNet's Rachel King just tweeted that the jury now is asking for a read back of Dr. Mitchell's testimony:
[There's a jury question! Everyone files into the courtroom to
Google: Good afternoon, Your Honor.
Judge: Good afternoon.
Google: Could we have a moment to read the note?
Counsel, tell me when you're ready to discuss the note from the jury.
We'll just pause until you're ready.
Google: I think we're ready, Your Honor.
Judge: So the note says: "We are attempting to determine the scope of
the meaning of the term 'simulating execution of the bytecodes'
in patent '520. Is the existence of an example of the Android
code not functiong (punting), when formatted in a normal simulated
execution setting, permitted to be taken as evidence that Android's
array initialization diverges from the patented array intiialization?"
Oracle: First an observation, then two points.
There appears to be a misunderstanding in the question. They
say "when formatted in a normal simulated execution setting",
which doesn't make sense.
Now, the first point: the experiment that Dr. Parr did went to
proving that the stack was not used in Android. That is legally
irrelevant, as there's no requirement in the claims that the stack
be used. In other claims there is such a requirement, but not
in the asserted claims.
Second, the specification does speak to how the simulated
execution functions when a bytecode other than those that
are listed as stack array initialization bytecodes is encountered,
and it's not inconsistent with simulating an array. Column 5,
line 44: "any bytecodes other than those above are not
recognized ... in this case, the clinit method will not be
So the specification is clear that if something is dropped in
that's not a bytecode that the clinit method would normally
emit, then there's an exception taken and something else happens.
That's consistent with what happened in the experiment.
Google: I'm not sure why we need to get into all that. I think the
simple answer is yes, you should give it the weight you think it
I mean, the question is whether this is permitted to be taken
as evidence that Android's array initialization differs from
the patented method. That was Dr. Parr's testimony; he thinks
that it suggests that the code uses pattern matching, not
They can take it into account, and give it the weight they think
it deserves. It's fairly straightforward.
Judge: The question is asking not a legal question, about the meaning
of the instructions; it's asking about how to evaluate the evidence
concerning how Android works. Specifically, they want to know if
the existence of this example can be taken as evidence that the
Android array initialization differs from the patented array
That's a fact question, not a legal question. They're asking us
how to weigh the evidence, which is not a proper question at this
stage. It's not asking about the law.
Now, you two, if you both agree, we can bring the jury out here
and you each get a five-minute argument on this point. I'd let
you do that, so long as you both stipulate that it's okay. But
that's really what they're asking here, for some kind of supplemental
So my inclination would be to ask you if you want to do a five-minute
explanatinon to the jury. I'm not ordering it; if you both agree,
that's fine, we'll do it. If you don't agree, we're not going to
[Google lawyers confer]
Oracle: Your Honor, I think we can shortcut this. We prefer the
Court give the guidance the Court was intending to give, and
not give a five-minute argument on the fly.
Google: Your Honor, if you're not going to have a supplemental
argument, I at least want to let them know that they should
take all the evidence into account. I don't want to suggest
that anything is out.
Judge: That's not what they're asking. You're putting a spin on
it. They're asking whether they're permitted to take this as
evidence that Android's array initialization differs from the
patented method. If I say yes, that's me telling them to rule
for Google. I'll tell them that the weight of the evidence,
that is for them to decide, and not for the Court to give you
Google: Could you read your proposed answer again?
Judge: [repeats his explanation that this is a question of fact,
not of law, and it's for the jury to decide]
Oracle: [some sort of objection]
Judge: You object to the form of that statement?
Oracle: Not to the form, Your Honor.
Judge: So what's your objection?
Oracle: Substantive. It's that it is legally irrelevant.
Judge: Too bad. It's in the record, you didn't object to it,
you don't get evidentiary objections at this point.
Oracle: I should further note, for example, that claim 1 refers to
the output of a compiler, and that the manufactured example
there was not the output of a compiler, so it's not relevant.
Judge: You don't want to do a five-minute argument to explain that,
you just want to lard the record with something for appeal.
I'm not going to allow that.
At 2:00 I have a civil calendar, but if a note comes out I'll
interrupt that to deal with it. Your case gets priority.
All right, let's bring the jury out.
Judge: Thank you for your note.
Now, I need to say that there are things I can give you further
guidance on, such as if you were to ask a question specific to
one of my instructions, usually -- I can't say always, but usually --
I'd try to answer it. This question, though, is asking if you
can take a particular fact as evidence that Android's array
initialization diverges from the patented method.
Now, I've previously told you what's evidence in this case, and
what's not, I'm not going to repeat that. Here's my answer:
your question is one that goes to the weight of the evidence
and how to evaluate it. That is for you to decide, and not for
the Court to give you further guidance at this point in time.
So, I'm sorry, but that's the best answer I can give you with
respect to how you have phrased the question.
While I have you here, is there anything else?
Oracle: Timing on the JMOL opposition, I think they're currently due
at 5 pm. If that suits you, we can do it, but if we had a couple
hours more, we could really polish it.
Judge: I'll give you even more. How much time do you need?
Oracle: Later this evening.
Judge: How about midnight?
Oracle: That would be great.
Thu May 17 12:58:30 PDT 2012
Jury requesting transcript of a portion of Dr. Mitchell's testimony be read; concerning pattern matching versus simulated execution. That will not clarify anything, I don't believe, since what he testified to was, to put it kindly, bizarre, according to all the techies here at Groklaw. But the jury doesn't know that. And they are not techies. What a way to decide a case.
But don't go just by my opinion. Here is his testimony. And
here is Terence Parr's.
Update: Here's the rest of the day:
Thu May 17 13:48:23 PDT 2012
Oracle: While we're filling time, I'd like to talk about [something
about infringer's profits].
[Brief chat with the judge that I can't quite hear, because people
are still filing into the courtroom]
Judge: I have another note. "We request the transcript of a portion
of Dr. Mitchell's testimony be read to us. It concerns the topic
of pattern matching versus simulated execution, and occurred late
on May 9 and early on May 10."
I think you should be able to isolate the relevant parts for the
jury and read them, if you guys can agree on it. Let me know when
Google: We'll try to do that, Your Honor.
Judge: How long will it take you?
Oracle: Maybe ten minutes.
Judge: That short?
Google: I think maybe it'll take a little longer.
Judge: Let's say 2:20. Remember, you have to reach an exact agreement.
[The lawyers file out to confer. In the meantime, the judge starts
handling some of his other cases, which is interesting to watch:
he still has the exact same no-nonsense style, and he's clearly
been paying attention to all these other cases too.
After 20 minutes or so, the lawyers are called back to deal with a
Judge: Note from a juror: "I'm sick. Can I get a sick day
without being discharged? Sorry."
Google: Your Honor, we conferred briefly and think it makes sense to
dismiss the jury for the day and hope that the juror feels better.
Judge: Well, it's possible, that's one interpretation of this, but
I think she means tomorrow.
Google: Well, even that could be okay. She's already invested 10 or
12 hours deliberating.
Judge: I think we can reach a verdict by tomorrow, and we don't need
eleven, we only need six. And we don't have any guarantees she'll
be well by Monday.
Google: Could we at least find out what she wants? It's possible she
just wants the rest of the day off.
[The juror is brought in. She clearly has a cold. It turns out
she does want tomorrow off, and thinks she'll be well by Monday.
She sounds like she really doesn't want to get dismissed, but
realizes that it'll be hard to hold up the whole trial.]
Judge: Are you in a good enough mental state to deliberate?
Juror: I think so. I mean, I'm coughing, and sneezing,
and I could use a nap, but I can concentrate if I need to. I don't
want to get everyone else sick, though.
Judge: What are the odds that if you took the rest of the day off,
that you'd bounce back for tomorrow morning?
Juror: I think if I had the day of rest and then the
weekend, I'd be fine.
Judge: But that means we give up the chance to get a verdict this
week. If you think there are good odds you'd be able to soldier
on tomorrow, that's one thing. If you're asking for the whole
weekend, I'm not going to say no, but it's harder. I'd have to
check with the lawyers.
Judge: Any questions that the lawyers have?
Oracle and Google: No, Your Honor.
Judge: I have an idea.
She doesn't sound good.
Here's what I suggest we do. Bring in the jury, take the rest
of the day off, and tell her if she's too sick to go forward
tomorrow, she can call in and we'll discharge her. Agreed?
Google and Oracle: Agreed.
Judge: By now you know Juror X isn't feeling good. Hanging out
at the hospital too much? [laughter] You've picked up somebody's
Here's what we're going to do. We're going to take the rest of
the day off, and keep our fingers crossed that she feels better
tomorrow. If not, there's a very high likelihood that she'll be
discharged and we'll go on without her. If she is, though, that's
If we take tomorrow off, then there's a possible inconvenience
to the ten of you, since you might otherwise be able to reach a
verdict tomorrow. Of course, if you can't reach a verdict tomorrow,
that's fine, we'll go on to next week.
As for the other ten of you -- well, all of you -- once you leave
here today, don't deliberate any more, just go home, get a fresh
start, and that's the best I think we can do. Any questions about
that plan? Anything the lawyers want me to add or subtract?
Google and Oracle: No, Your Honor.
Judge: Okay, we're going to take this extra time to find those passages
the lawyers are going to read back to you. It takes a little time --
it's not as easy as just punching it up on the screen, the lawyers
need to work on it. We should be able to have it ready for you
tomorrow morning, though.
Judge: Okay, how's the transcript going?
Google: We should be ready soon.
Should we just show up at 7:30 tomorrow?
Judge: I think that's good. 7:30 tomorrow.
Thu May 17 14:29:45 PDT 2012
Update: We now have the transcript [PDF] of the day.