The Court has asked the parties to provide further briefing on the subject of interoperability. (1181 [PDF; Text]) It is unclear whether this line of questioning indicates some likelihood that the Court considers APIs protectable by copyright, but there is certainly that possibility.
In the meantime, the questions being asked by the jury in the patent phase give every indication that the jury is hung on the issue of patent infringement. Numerous times over the last two court days the jury has asked to have the instructions read to them again or to have certain phrases interpreted.
The problem is that, unless that information is already in the trial record, asking the question doesn't mean getting an answer. Moreover, the parties are frequently disagreeing on what the answer should be. Judge Alsup's candid remark to both parties about the dangers of patent infringement litigation never seemed more pertinent.
05/21/2012 - 1181 -
REQUEST FOR MORE BRIEFING RE INTERFACES, EXCEPTIONS, AND
INTEROPERABILITY. Signed by Judge Alsup on May 21, 2012. (whalc1,
COURT STAFF) (Filed on 5/21/2012) (Entered: 05/21/2012)
IN THE UNITED STATES DISTRICT COURT
ORACLE AMERICA, INC.,
FOR THE NORTHERN DISTRICT OF CALIFORNIA
No. C 10-03561 WHA
REQUEST FOR MORE BRIEFING
RE INTERFACES, EXCEPTIONS,
1) By noon Wednesday, each side shall please state how many “interfaces” are
included in the joint table supplied a week ago by counsel (Dkt. No. 1124). This
can be on a total basis and need not be broken down by the 37 packages. Also
please state how many “exceptions” were “thrown” and the extent to which they
were duplicated by Google (again on a global basis). Each side should include
one example of an “interface” and one example of a “throw” to illustrate the most
salient points about these features (for a total of four examples). Please explain
the salient point. All information must be in the trial record. Please include cites.
2) With respect to interoperability (Sega / Sony), please state the trial record
A) To what extent, if at all, have applications and programs written for the
J2SE platform before Android arrived been able to run on Android?
B) To what extent, if at all, have applications and programs written after
Android arrived been able to run both on Android and J2SE?
C) How, if at all, have Android and the replication of virtually all of the 37
packages promoted interoperability?
Please answer both question 1 and 2 by Wednesday at noon in 12 pages or fewer. By Thursday
at noon each side may reply in five pages or fewer.
D) To what extent was interoperability an actual motive of Google at the time
the decision was made to replicate the 37 packages?
To the extent practical, please quote the testimony or exhibits in evidence so that
the judge can make his own evaluation. Counsel may add argument but please
quote the evidence.
IT IS SO ORDERED.
Dated: May 21, 2012.
/s/ William Alsup
UNITED STATES DISTRICT JUDGE