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From the Courtroom: Day 13 of Patent Phase, Oracle v. Google Trial - Jury: No Patent Infringement ~pj Updated 3Xs
Wednesday, May 23 2012 @ 12:50 PM EDT

UPDATE: The jury verdict is in. They found no infringement of the patents!

Google has a statement already:

Today’s jury verdict that Android does not infringe Oracle’s patents was a victory not just for Google but the entire Android ecosystem.
Our reporter provides this:

Question 1: has Oracle proved by preponderance of evidence that Google infringed?

Claim 11: not proven
27: no
29: no
39: no
40: no
41: no

Question 2: not proven

1: no
20: no

Question 3: no answer, no response, not applicable.

Unanimous. The jury is dismissed. There will be no damages phase for them to endure. And there was only one juror holding out for Oracle. We also learn that in the copyright phase, it was 9 to 3 for Google on fair use. See Dan Levine's tweets in Update 2. In short, Oracle has lost big time so far.

Jump To Comments

[Update 1, Update 2, Update 3, Update 4]

From our reporter in the courtroom:

Jury discharged.. because phase 1 and 2 done, and phase 3 not happening due to agreements between lawyers.

Jury can talk or not talk to anyone, but please be accurate because inaccuracy can lead to evidentiary hearing and impeachment of verdict.

In his heart, you are respected, he said, and your verdict is respected.

I haven't had a jury in a civil case that has gone this long, "longest civil trial" and you all have been a superb jury, and this country is a great country, because of citizens like you who are willing to sacrifice and come in as you have. Thanks them on behalf of country and Federal court.

He will then thank them individually in jury room.

Amen to that. This is the longest trial Groklaw's ever covered, too, and I'm so exhausted, when I heard the judge was taking a 5-day weekend, I felt like champagne.

And now to the media: Here's a homework assignment for you, if you are willing. I want you to think about those $6 billion damages headlines. Where did the "information" come from? Was it an accurate tip? Remember all those articles about Google and how they were hopelessly in a mess because they had no patents to use in a counterclaim against Oracle? Where did that come from? Was it an accurate analysis? Was it expert? Think: If someone is being paid by a party to litigation, what is he likely to say? There is a difference between information and propaganda.

Here at Groklaw, we told you that there would never be a $6 billion damages award, and I told you that Google has a phenomenal record in beating back patent infringement claims. And I wrote that the patents looked goofball to me. Just like with SCO against the World, Groklaw called it right.

Think of the smearing that Google has had to endure. I hope you fix that now, if you participated in it unwittingly. What does this verdict mean? It means that Google did nothing wrong with Oracle's patents ever at any time. It was Oracle who was in the wrong. There was no patent infringement. Period.

And may I just list the incredible legal team that accomplished this result? It's been a plum pleasin' pleasure to watch them at work:

From Keker & Van Nest:
The incredible Robert A. Van Nest
Christa M. Anderson

From King & Spalding:
Scott T. Weingaertner
Robert F. Perry
and the amazing Bruce W. Baber [I know a geek when I see one]
Donald F. Zimmer, Jr.
Cheryl A. Sabnis

From Greenber Traurig:
Ian C. Ballon
Heather Meeker

Yes, there is more to come. The API question remains pending, and whatever damages there may be after the judge reaches that decision, if any. If you recall, there's a stipulated agreement between the parties and signed by the judge on copyright damages and the various ways it might be computed, depending on the API SSO claim, which may yet go to a second jury. But this was the big issue in the here and now, because what Oracle was threatening was an injunction, and without patent infringement, that part of the threat is forever off the table. Can you imagine if these two sad sack patents had been used to block Android in the US? And then, if Oracle is foolish, it will spend more money on appeals, and Groklaw will follow that too, if necessary. I hope they don't, but they don't listen to me, so they probably will.

Patents and software need to get a divorce before somebody gets hurt. Imagine if Oracle had gone after someone less willing to stand up to patent bullying. The damage from software patents is astounding, and the IP is so puny. There is an imbalance in the legal universe, and it needs fixing. Software is algorithms, and that is mathematics, and it's wrong, totally wrong, to let math be patented. These patents should never have issued.

And may I say thank you to our wonderful volunteers, who stuck with this trial to the end, and made it possible for us to really know all the details of the proceedings. We will, of course, obtain the court transcripts in 90 days, when they become available. But imagine if we'd had to wait 3 months before even knowing what was really doing on! So thank you, guys. You are awesome.

I guess it's time to make some music on Google's doodle for today. A victory march might be just the thing.

And Groklaw's feldegast was thinking about what Oracle tried to do to Android, and he came up with this graphic:

So far, it's more of a boomerang than a club.

Update 2: Wait -- Dan Levine has found a juror, and it's amazing news:

We all just interviewed juror, who said jury was split 9-3 for google on copyright fair use. Um, wow.
And on patents, there was only one for Oracle, the foreman:
The foreman was only holdout for oracle on patents. So even if oracle wins on appeal, its trial strategy needs revamping
That might explain all the notes to the judge, trying to get the others to alter their views. But the answers apparently finally made it unanimous. There was no bad blood, the foreman tells Levine. It was always civil during deliberations. And here's why the fair use argument made sense to the jury:
Foreman Thompson: lot of jurors were focused on evidence that Android use of Java was creative transformation, which is fair use protected
Another tweet, this one from Lucio Maciel (@luciofm):
I think mr @FOSSpatents was very, very wrong then... Jury was pro google, and not pro oracle on this question...
Yup. Extrapolate.

In fact, Joe Mullin at ars technica did a lengthy interview with the jury foreman, and it turns out it was he sending most of the notes:

The feeling was that the computer code being dealt with was basically a functional tool, and when a copyrighted work is functional rather than creative, that weighs in favor of fair use (and thus, Google.)

"A lot of the jurors were focused on functionality versus creativity," said Thompson, with a majority "putting greater weight on functionality."...

The patent phase was largely the same, with a majority of the jurors leaning toward Google from the beginning of the deliberations, with a few undecided. That quickly shifted to a situation where Thompson was the lone pro-Oracle holdout, he said. Of the array of technical questions sent to the judge during deliberations, many were his own, Thompson said. Finally, realizing he wasn't swaying anyone else to his side, he determined that Oracle hadn't met its burden of proof and Google should be off the hook. "The nail that's poking up eventually gets beaten down," Thompson said, smiling.

The judge's curt answers to his questions were "of limited helpfulness," Thompson said. "The answers... could be interpreted in different ways."

There was a lot of technical jargon, but the jury's consensus was ultimately that Android used "numerical identifications" that put its operations outside the "symbolic references" pointed to in Oracle's key patent.

Update 3: The media reports are starting to come in:

  • Caleb Garling, Wired, "Jury Says Google’s Android Does Not Infringe Java Patents":
    A federal jury has found that Google did not infringe on Oracle patents in building its Android mobile operating system. As part of its lawsuit against Google, Oracle had argued that in creating the Dalvik virtual machine — the software platform that runs Java applications on Android — the search giant knowingly lifted intellectual property involving two Java-related patents that Oracle acquired with its purchase of Sun Microsystems. But on Wednesday morning, the jury dismissed Oracle’s claims. ...

    Oracle indicated it will continue to push its case. “Oracle presented overwhelming evidence at trial that Google knew it would fragment and damage Java,” read a statement from the company. “We plan to continue to defend and uphold Java’s core write once run anywhere principle and ensure it is protected for the nine million Java developers and the community that depend on Java compatibility.”

  • CNNMoney:
    In one of Silicon Valley's landmark court battles, Google appears to have won a big victory over Oracle.

    A jury on Wednesday cleared Google of violating any of Oracle's patents with its Android mobile software.

  • Josh Lowensohn, CNET has more details on the jury question:
    In particular, the jury wanted to know the legal interpretation of the words "simulating execution of the code," made within U.S. Patent No. 6,061,520, one of seven Oracle patents named in the original suit that covers "method and system for performing static initialization."

    Alsup asked Oracle's counsel to answer that question, which led to Oracle's counsel asking for a five-minute huddle with Google's legal team to hammer out an answer.

    When the judge returned, the two sides suggested that the jury might have been referring to one of two claims made within different sections of the patent. Alsup concurred, and brought the jury back into the courtroom to lay out how the question could reference either claim 1 or claim 20 from the patent, and how it needed to be more specific when asking such questions, adding that he wasn't "100 percent sure" he had answered their original query.

    Nonetheless, Alsup said the jury was "right on target" for asking the meaning of the phrase because it was a legal question. He then sent the jury back to deliberations and said they were welcome to submit additional queries. A verdict arrived approximately half an hour later.

  • Thomas Claburn, InformationWeek:
    With the copyright and patent phrases of the trial complete, Judge William Alsup must decide whether APIs qualify for copyright protection. There's reason to believe they do not: Earlier this month, the Court of Justice of the European Union ruled that neither the functionality of a computer program nor the format of its data files are expressive enough to merit copyright protection.

    The Electronic Frontier Foundation argues that APIs should not be copyrightable. "Improvidently granting copyright protection to functional APIs would allow companies to dangerously hold up important interoperability functionality that developers and users rely on everyday," said EFF attorney Julie Samuels in an online post earlier this month.

  • Hayley Tsukayama, Washington Post, "Google cleared of Oracle patent infringement":
    A California jury has ruled that Google is cleared of infringement on any patents owned by Oracle in the company’s trial to determine whether or not the search giant improperly used Java APIs while developing Android.
  • Fox Business News, "Jury: Google Didn't Violate Oracle's Patents":
    Competition between tech companies for customers in the highly profitable smart phone sector has led to a spate of lawsuits alleging that competitors are stealing one another’s technology and intellectual property.

    Google’s Android smart phone has been phenomenally successful and Google has suggested the Oracle lawsuit is meant to cut into Android’s marketshare.

  • Dan Levine, Reuters, "Google did not infringe Oracle patents - jury":
    While Oracle is seeking about $1 billion in copyright damages, the patent damages in play are much lower. Before trial, Google offered to pay Oracle roughly $2.8 million in damages on the two patents remaining in the case, covering the period through 2011, according to a filing made jointly by the companies.

    For future damages, Google proposed paying Oracle 0.5 percent of Android revenue on one patent until it expires this December and 0.015 percent on a second patent until it expires in April 2018. Oracle rejected the settlement offer.

  • Quentin Hardy, N.Y. Times, "Google Cleared of Java Patent Violation":
    The verdict, reached in Federal District Court in San Francisco, leaves Oracle with a relatively small claim of copyright infringement, making it almost certain that the judge will not demand a harsh penalty from Google.

    That would be a mild end to what at one time seemed to be a major case between two of the largest companies in tech. Oracle, which picked up the Java software language when it bought Sun Microsystems, accused Google of violating both patent and copyright protections in developing Android, which is now the world’s most popular smartphone operating system. If Google had lost on several counts of the case, it could have been subject to severe fines or been forced to let Oracle in on future developments of Android.

    “It’s a full win for us,” said Jim Prosser, a Google spokesman. “If you look at what has happened in this case so far, they didn’t have much.”

  • James Niccolai, ComputerWorld:
    Google's Android operating system does not infringe Oracle's Java patents, a jury in San Francisco found Wednesday in a setback for Oracle.

    The jury delivered its verdict after more than a week of deliberations. It found no infringement of any of the claims in two Java-related patents Oracle had asserted, court documents show....The reissued patent ['104] was awarded to James Gosling, the Sun engineer often called the father of Java.

  • Jeff John Roberts, GigaO, "Verdict in: Strike 2 for Oracle in “World Series of IP” trial with Google":
    The jury in the epic intellectual property trial between Oracle and Google is going home after ruling today that the latter didn’t infringe on two patents related to the Java programming language.

    The finding is a major blow to Oracle. The same jury was earlier unable to decide whether Google’s use of Java Application Interfaces was fair use under copyright law.

  • Karen Gullo, BloombergBusinessWeek:
    The 10-person jury ruled unanimously today that neither of the two patents at issue was infringed. Immediately after the verdict was announced, the judge dismissed the jury from the case and canceled the third phase of the trial over damages...

    U.S. District Judge William Alsup, who presided over the trial, said he may issue a ruling next on whether Oracle’s Java application programming interfaces, software tools at the heart of the case, can be copyrighted. A ruling that they aren’t would be another blow to Oracle.

  • Patrick May, San Jose Mercury News:
    The verdict is a win for Google, and marks the end of the trial's second phase, which focused on the claims of patent infringement. Closing arguments in the case were made last week.
  • Steven J. Vaughan-Nichols, ZDNet, "Google kicks Oracle in its patent teeth":
    So what will all this mean? First, it’s not the end. Oracle will appeal. Oracle CEO Larry Ellison doesn’t know the meaning of the word “Quit.” I don’t see any chance though that any higher courts will give Oracle’s arguments any credence.

    As Linus Torvalds, Linux’s creator, observed on Google+, “Prediction: instead of Oracle coming out and admitting they were morons about their idiotic suit against Android, they’ll come out posturing and talk about how they’ll be vindicated, and pay lawyers to take it to the next level of idiocy.” Alas, he’s right.

  • Joe Mullin, ars technica, "Oracle v. Google jury foreman reveals: Oracle wasn't even close":
    Thompson's brief chat with reporters revealed that the jury had a strong pro-Google bent during both the patent phase, which Google won, and the copyright phase, which ended with a split verdict.

    Oracle—after spending millions litigating this case and dragging in some of the world's most famous tech CEOs to testify in a federal courtroom—had never even come close to winning....

    After the copyright verdict, there had been some speculation around the Web that because the jury found that Google infringed copyright—but split on fair use—it was basically a pro-Oracle jury with one or two holdouts sticking up for Google. Talking to Thompson, it quickly became clear that wasn't the case at all. A majority of jurors favored Google's argument from the start, and the holdouts—primarily Thompson himself—were a beleaguered few favoring Oracle. At one point during the copyright phase, in fact, Thompson said he was the lone holdout. At the end, he swung a couple more jurors to his side, but they were still a distinct minority.

    As to the finding of infringement, Thompson said that the jury actually didn't debate it that long. The feeling was that the answer to the infringement question—the first one on the copyright verdict form—had basically been dictated by the judge's instructions. (Judge Alsup told the jury, among other things, that they must assume that the Java APIs are copyrighted.) "We felt that the judge's instructions put us a lot of the way towards finding infringement," Thompson explained.

  • Jon Brodkin, ars technica:
    It's not over. There will be appeals, and a question about whether Java APIs can be copyrighted is still awaiting a ruling from the judge presiding over the case. But for now, it looks like Oracle may have spent millions of dollars to get nothing in return.

    "I would assume this is a several million dollar trial," Penn Law Professor R. Polk Wagner told Ars today. "Six weeks is a long trial, plus the case was fairly complex. I would not be surprised if [Oracle's costs were] more than $10 million once you include the enormous amount of prep work."

  • MarketWatch:
    "I think you've seen a lot of patent cases filed lately, and most of them have not resulted in successful outcomes for plaintiffs," said Google General Counsel Kent Walker. "That may send a message to those who might want to do these things in the future."

I told you I thought that was what happened with the jury, that they thought the judge's instruction forced them to find infringement. It didn't, but I felt fairly sure they would view the wording that way, after he edited his first draft.

'Didn't have much' is an understatement. Oracle has 9 lines of code written by the author of the code, who may have copied it or just redid it the same, but code the judge himself said he could have written it's so basic. And Oracle has some test files that a contractor, contrary to Google's express instructions, somehow put in, but they were never shipped and Google removed them when they were notified that they were in there. That's all Oracle has so far.

And the Google offer of payment on the two patents was a *conditional* offer -- it only would have come into effect IF Oracle could prove infringement at trial, not to avoid one, and anyway, Oracle turned down the offer.

As for James Gosling, where was he in all this? Seriously. Where? [Update: Here. Sore loser.]

The fact that I'm showing these snippets doesn't mean I agree with all that is in each article. For example, there'll be no phase three on Tuesday, as some are reporting. The stipulated agreement tells you when, if ever, that will happen. But the snippets do give us a feel for how the world at large is viewing this victory for Google. And if you are wondering why your article didn't show up, keep in mind that Groklaw doesn't link to articles that quote or mention FOSSpatents, unless the article reveals to its readers that Florian Mueller is on Microsoft and/or Oracle's payroll. You owe your readers that much. There are also so many articles now out there, if there's duplicate information, I'm not going to list the later duplicate.


[Coverage before the verdict:]

Another day, another jury question. Happily, this one is on patent '520, not '140, so probably that means the jury is making progress. Ginny LaRoe tweets:

Jury question is on 520 patent. But it's too long to tweet. And Oracle's Jacobs says, "We don't understand the question."
And so it begins in the Oracle v. Google trial's jury deliberations. Robert Van Nest is in the house for Google. The lawyers confer, and then tell the judge that neither side understands the question. Another hilarious day begins to unfold in San Francisco. And I'm glad to tell you that we have a reporter there for Groklaw today.

Her first report:

Jury is in to get an answer to the question.

Discussion with lawyers was very confusing.. they didn't know how to answer... but judge is going to give it a try:

Question: understanding the 520 issue is about patent protection for the array "simulated execution of the code" as found in the claim language. Does that wording refer to looking at the actual static initial array for the purpose of...
Simulating execution of the code is for the purpose of identifying the static initialization.

You simulate to identity the static initialization.

#1 is about:
A method for statically initializing an array for the 5 steps.. you don't get to the static initialization until you do the 5 steps.

Then the judge said that he felt the jury didn't really get what he was saying, but they (the judge, the lawyers) weren't sure about the question, so the jury was free to ask a follow on question and they should continue on deliberating.
So the jury is confused, and so the question made no real sense, so the real answer is: try again to ask a question that can be answered. But, as CalebGarling points out, at least the parties finally agree on something.

Update 4: We now have the transcript [PDF] of the day's proceedings.

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