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

[There's a jury question! Everyone files into the courtroom to hear it.]

Google: Good afternoon, Your Honor.

Judge: Good afternoon.

Google: Could we have a moment to read the note?

Judge: Sure.

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 optimized".

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 deserves.

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 simulated execution.

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 initialization.

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 argument.

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 do it.

[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 further guidance.

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.

[jury enters]

Judge: Thank you for your note.

[reads 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.

[jury leaves]

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.

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 that's done.

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 new note.]

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.

[juror leaves]

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.

[Jury returns]

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 cold.

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 great.

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.

[Jury leaves]

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.