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From the Courtroom - Oracle v. Google ~pj - Updated 4Xs - Final Judgment
Wednesday, June 20 2012 @ 02:05 PM EDT

Our own mirrorslap is in the courtroom in San Francisco for the case management hearing in Oracle v. Google. He has sent his first, quick report:
Oracle v. Google Hearing 2012-06-20

10:55 clerk comes in and hands out the draft order. Jacobs looks at it, shakes his head, and says "Jesus" under his breath. Both parties looking intently over it. Google's team sits down, Oracle's still gathered, looking grim. Van Nest conferring with Christa Anderson and short-cropped young red-headed lawyer. Slight smile from Ms. Anderson.

Sounds like things are going well so far for Google. But stop back by later, and we'll have more.

Jump To Comments

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

Update: And here are all the details:

11am begin Judge Alsup arrives.

Introductions of attorneys and Mr. Cooper, who worked with Dr. Kearl.

Judge: We are here to address what needs to be done to get a final judgement. What I handed out is what I think would be adequate. Larger picture: Statutory damages for rangeCheck and copied files.

Oracle: Statutory damages of $0 with the ability to pursue further.

Judge: Agreed to by both sides?

Both: Yes.

Judge: Well, I don't fully remember these prior stipulations well enough to be able to know whether this new stipulation... is there a catch here?

Oracle: Defer statutory damages until resolution. Parties agree that we need to address statutory damages. Agree to an amount to reach finality. If the case returns to court on appeal...

Judge: Is there any way that the statutory damages could come back to life, or is that gone forever?

0racle: This is governed by section 2 of the existing stipulation.

Judge: [Reviews page 2.] All right, I guess I understand it. So what else do we need to work on today?

Oracle: Other 2 issues have been resolved, payment of fees.

Judge: 2 issues on fees have been resolved?

Google: Dr. Cockburn's fees, Dr. Kearl's fees agreed upon. The final judgement proposed by the Judge is agreed to.

Judge: I want to say how unfair it is that Mr. Cooper is not being paid, but Dr. Kearl is getting paid. I appreciate your service in this case. AAJ trial lawyers dinner 4 years ago, ruing weight on judiciary, Mr. Cooper volunteered to help. I think many times how wonderful it is that we have such great lawyers in this district who are willing to work pro bono.

Judge: In case we have to reactivate, are Dr. Kearl's notes in such a manner that they can become reactivated? Can he keep his notes?

Google and Oracle both join in thanking Mr. Cooper.

Judge: One other request, at Judge Alsup's own personal expense to take Mr. Cooper to lunch, and not talk about the case.

Wont be one of my normal places, like Red's Java House (laughter).

Judge: Google is okay with court's proposed judgement... is Oracle?

Oracle: Equitable estoppel and waiver... should be laches?

Judge: Yes.

Oracle: With regard to the order in which patents were dismissed. In May 3, "Oracle may not renew infringement claims except for new products" March 9, 2012, precis... request that the language be included "may not be resurrected unless"...

Judge: You could have accused them but you chose not to.

Google: How about something more generic? The principal is something that they could introduce later.

Judge: The principal is, if someone sues company ABC on products 123, and then ABC builds product 4, then the suing party cannot sue over 4.

Oracle: Google limited it over what products were in discovery.

Judge: What else?

Oracle: One other thing... there needs to be some indication in the ruling about awarding of costs, silence on the final order does not prejudge the payment of final costs.

Judge: What does Google think?

Google: This is fine, but there was no mention of it in the order proposing final judgement.

Judge: Any other issues?

Google: No.

Oracle: No, but we are calculating the Rule 50b motion, post-verdict motion as a matter of law.

Judge: I thought we were done with those. I am amazed to hear that. I don't know if this is timely or not.

Oracle: Ordinarily it would be done after the final judgement.

Judge: You gotta do what you gotta do. Thank you for the heads-up.

Oracle: We were calculating off the date of the loss.

Judge: Earlier, the fee calculation was in dispute, but how it has been resolved? Judge: It seems out of character for us to have a short hearing (laughter). When might I see you again? Rule 50?

Oracle: Yes. We might also see you at [after?] our appeal.

Judge: [He just shakes his head.]

Adjourn.

[Update 4: We now have the transcript [PDF] of the hearing.]

I guess we don't have to be lawyers to figure out that any Rule 50(b) motion from Oracle is not going to be signed by the Hon. William Alsup. He'll be telling his wife about what happened today, I'm guessing.

As for the catch to Oracle's request that the language be included about Google's new products, which I wrote about yesterday, I gather Google isn't worried about it. It seems willing to handle whatever tricks Oracle tries next. I think they don't expect an appeal by Oracle to be successful. If it were me, I'd worry and be sure to block, but then I've known Boies Schiller longer, I suspect, and tracked them more closely than most humans on earth.

Here's the proposed stipulation that they were talking about in the hearing about the statutory damages being set at zero, but it's not the final version. We'll have that later, when it's posted, but from the report it should be the same:

06/20/2012 - 1210 - STIPULATION WITH PROPOSED ORDER re 1159 Stipulation and Order (Second) Regarding Copyright Damages filed by Oracle America, Inc.. (Jacobs, Michael) (Filed on 6/20/2012) (Entered: 06/20/2012)

Leaving off the header, signatures, and attestation page in the interests of time, it reads like this now:

STIPULATION

WHEREAS, the parties previously entered into a stipulation, approved by the Court (ECF 1159), regarding damages, if any, related to Google’s infringement of Oracle’s copyrights in connection with (1) the rangeCheck code in TimSort.java and ComparableTimSort.java, and (2) the eight decompiled files (seven “Impl.java” files and one “ACL” file) (collectively, the “Copied Materials”);

WHEREAS, Section 3.C of the prior stipulation provides that the Court will set an amount of statutory damages for Google’s infringement in connection with the Copied Materials if Oracle’s copyright claim based on the accused 37 Java API packages (the “SSO Claim”) is not submitted to a future jury; and

WHEREAS, the parties wish to modify the prior stipulation in certain respects to facilitate entry of a final, appealable judgment in this action;

NOW THEREFORE THE PARTIES HEREBY STIPULATE AND AGREE as follows:

1. The Court may enter an award of statutory damages under Section 3.C of the prior stipulation (ECF 1159) of $0, and can enter statutory damages of $0 in the final judgment in connection with the Copied Materials only.

2. Other than as stated above, this stipulation will not alter the terms of the prior stipulation (ECF 1159). For the avoidance of doubt, the parties reaffirm that paragraph 2 of the prior stipulation shall govern in the event that the SSO Claim or any portion thereof is ultimately submitted to a trier-of-fact for an assessment and award of monetary relief.

3. The amount of statutory damages set in Paragraph 1 shall not be used to support an argument that a party is or is not the “prevailing party” for purposes of allocating costs, nor shall it be used to support an argument that the award is outside the range permitted by 17 U.S.C. § 504(c).

In other words, this is the version the parties agreed to and it's the version the judge asked whether it included a catch and then read during the hearing. It's just about statutory damages, and the parties agreed to have it set, for now, at zero. And that means unless Oracle wins on appeal, it will never come up again.

This second stipulation about copyright damages references the first one, and it's docket #1159 [PDF], which you can find here if you'd like to read it in full as text. Here's paragraph 2, which they are reaffirming:

2. In the event that Oracle’s claim based on the SSO of the 37 accused API packages or any portion thereof (the “SSO Claim”) is ultimately submitted to a jury (the “Future Jury”) for an assessment and award of monetary relief, then:

A. Proceedings with respect to the SSO Claim will be bifurcated, i.e., liability will be tried separately from willfulness and damages;

B. Oracle shall be free to seek from the Future Jury monetary relief in the form of profits for the infringement arising as a result of the Copied Materials, but only to the extent such profits are not taken into account in computing any actual damages or profits sought for infringement of the SSO; provided, however, that nothing herein shall require Oracle to allocate its actual damages and/or profits claimed between the SSO and the Copied Materials; and

C. In the event Oracle seeks profits arising as a result of the Copied Materials in such a future damages phase, neither party may use any expert opinions or reports or other evidence that they could not have used in the event such claim for profits was tried before the current jury.

Again, this could only happen if Oracle wins on the SSO issue on appeal. So the next step will be the judge filing his Final Judgment. I'll post it here, when it happens. The draft version did not include Oracle's desired language regarding new Google products. I gather that from the judge's reported comment, "The principal is, if someone sues company ABC on products 123, and then ABC builds product 4, then the suing party cannot sue over 4." So he noticed Oracle's move, seemed puzzled that Google didn't accuse them over it, and he didn't go for it in his draft. We'll see if they persuaded him during the hearing, when we read the final version. But it doesn't sound like it to me.

Finally, here is Mr. John L. Cooper of Farella Braun + Martel, who volunteered to advise Dr. James Kearl, the court's neutral adviser, in this matter pro bono. As you can see from his bio, he worked as an adviser to Judge Motz in a Microsoft antitrust matter (MDL Docket #1332, settled like this), not the one going on right now in Novell v. Microsoft over WordPerfect. Maybe Judge Motz should hire him, given the difficulties he seems to be having remembering the details of what happened in that case. And Mr. Cooper also submitted an amicus brief [PDF] on behalf of Dolby Laboratories in the In Re Bilski case that the US Supreme Court referenced in its decision. That's not a plus with this audience, perhaps, given the opposition to software patents, but I mention it because you might like to read it and to let you know that he's a major player. My point is, major players do pro bono work too.

Right about now, I'm guessing he's having a lovely lunch with both sides' lawyers on the judge's dime. And trust me, they'll be having fun. Lawyers don't take the fight to lunch, even if the judge hadn't set the terms that they were forbidden to talk shop at the luncheon. It's all left in the courtroom. And both Michael Jacobs for Oracle and Robert Van Nest for Google are really pleasant people, so I'm thinking it'll be a really fun lunch. Others in the restaurant will be glancing over and wondering what's so funny that that table is laughing so hard.

Update 2: I was curious as to who the judge was addressing when he said, "you could have accused them" and here is the answer from mirror_slap:

Patent infringement. The judge said that Oracle could have accused Google of patent infringement on other Google platforms, but that Oracle chose not to. Oracle tried to say that this was because Google limited their discovery. The judge wasn't buying that.

Update 3: Here's the final judgment and Oracle's ridiculous motion for judgment as a matter of law, which had the judge shaking his head in wonder that they'd even file it:

06/20/2012 - 1211 - FINAL JUDGMENT. Signed by Judge Alsup on June 20, 2012. (whalc1, COURT STAFF) (Filed on 6/20/2012) (Entered: 06/20/2012)

06/20/2012 - 1212 - MOTION for Judgment as a Matter of Law - ORACLE AMERICA, INC.'S MOTION FOR JUDGMENT AS A MATTER OF LAW UNDER RULE 50(B) OR, IN THE ALTERNATIVE, FOR A NEW TRIAL - filed by Oracle America, Inc.. Motion Hearing set for 7/26/2012 08:00 AM in Courtroom 8, 19th Floor, San Francisco before Hon. William Alsup. Responses due by 7/5/2012. Replies due by 7/12/2012. (Attachments: # 1 Proposed Order)(Jacobs, Michael) (Filed on 6/20/2012) (Entered: 06/20/2012)

Here's the final language on Oracle's "new products" wish list:
With respect to the five remaining patents, claims for relief by Oracle were completely dismissed with prejudice by Oracle (and may not be resurrected except as indicated in the orders of May 3, 2011, and March 2, 2012, with respect to new products). In this regard, it is the intent of this judgment and order that general principles of merger of claims into the judgment and res judicata shall be applicable.
If you refer back to what the judge said in the hearing, you see he's made it very, very hard for Oracle to go after new products, since he said the following when Google indicated it didn't object to general language:
Google: How about something more generic? The principal is something that they could introduce later.

Judge: The principal is, if someone sues company ABC on products 123, and then ABC builds product 4, then the suing party cannot sue over 4.

The last sentence in the final judgment in this section is referencing that.

On Oracle's JMOL motion, I'll eventually get it posted. But it's off the charts. Here's one sentence, just to show you:

Android’s Resolve.c infringes claims 11, 39, 40, and 41 of the ’104 patent because Dalvik bytecode instructions contain symbolic references.
Obviously this judge isn't impressed with Oracle's claims, so I assume this is for the appeals court. Unlike the wonderful Judge Alsup, they are unlikely to be programmers on the side.

But the simple truth of appeals courts is that they don't normally overturn on facts, only on issues of law. Why Oracle insists on going forward like this is consequently hard to fathom.

I guess a guy who buys a Hawaiian island can do other expensive things the same summer, like file Quixotic appeals.

Someone sent me the FOSSpatents coverage of the final judgment, and leaving aside the drooling about how Oracle will be whipping Android's butt in the future, ha ha, I want to correct one piece of misinformation. He writes:

Later in the day, Judge Alsup entered his "final judgment", which is however not going to be the last word in this dispute. Even the CAFC won't necessarily hand the final judgment -- the case could go all the way up to the Supreme Court. But in this case the appeal is 100% certain to happen and almost 100% certain to be heard, while an appeal from the CAFC to the SCOTUS is not certain to happen (if Oracle wins on appeal, Google may have to settle) and especially not certain to be heard.
An appeal from a district court is 100% certain to be heard. They do it sometimes on the filings; sometimes there's oral argument, but the appeal is never turned away without being considered. You can appeal as of right, meaning no one can tell you you can't file your appeal. It's the *winning* part that is hard, although certainly the Federal Circuit adores patents and keeps getting spanked by the US Supreme Court for it. So it's fair to say that it's not totally inconceivable that Oracle would get a receptive hearing. Your brief can be rejected for any number of reasons, but you get to refile. But as for the US Supreme Court, there are thousands of cases that wish to be heard every year, and they can't hear them all, so the odds are very much against this case ever going before the US Supreme Court.

I just wanted to clear that up, because there's been enough misinformation about this case spewing out to the media to choke a horse.


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