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Google Files for Extension to May 23 to File Appellee Brief and Cross-Appellant Brief v. Oracle ~pj
Friday, February 22 2013 @ 11:28 AM EST

Google has now filed an unopposed motion [PDF] asking the Federal Circuit for more time to respond to Oracle's appeals brief as well as to file a cross-appellant brief:
Under Federal Circuit Rule 26(b), appellee and cross-appellant Google Inc. (“Google”) moves for an extension—from the current due date of March 25, 2013 to the revised due date of May 23, 2013—to file its combined Appellee’s Brief and Cross-Appellant’s Brief (“Google’s First Brief”). Appellant Oracle America, Inc. (“Oracle”) does not oppose this motion and previously received an equivalent extension for its opening brief.
That means Google is going to answer Oracle's reasons for appealing but it intends to appeal issues as well. The court is likely to grant the unopposed request, since Oracle got an equivalent extension by saying it would not oppose if Google chose to file a motion asking for the same time, but it doesn't have to grant the motion. Until it does, the due date is still March 25.

Google states that not only did Oracle get a similar extension, but there have been a lot of words filed in amicus briefs in support of Oracle, or asking that the court overrule the district court in some particular way the amicus would like:
7. These six amicus briefs contain a total of 35,186 words—more than 2.5 times the length of Oracle’s opening brief (which contains 13,998 words). Google’s First Brief will be its last opportunity to respond to these additional briefs (except to the extent that they bear on Google’s cross-appeal).
And from reading Microsoft's amicus brief [PDF], I'd say there are some corrections needed. I'm working on a text version for you, and I'll highlight some of the things I see that I think need to be answered.

The filings:

02/21/2013 - 67 - MOTION of Cross-Appellant Google Inc. to extend the time to 05/23/2013 at 11:59 pm to file the appellee/respondent/cross-appellant's principal brief. Response/Opposition is due 03/07/2013 [Consent: unopposed]. Service: 02/21/2013 by email. [52647] 02/22/2013 - 71 - Notice of Rejection to Amicus Curiae Emcore Corporation, the following document(s) cannot be filed: [66] attorney entry of appearance , [65] attorney entry of appearance , [63] attorney entry of appearance. Reason(s) The documents are not text-searchable and do not contain certificates of service. Service: 02/22/2013 by clerk.

02/22/2013 - 72 NOTICE OF REJECTION: The brief of Amicus Curiae BSA - The Software Alliance, Brief for BSA The Software Alliance as Amicus Curiae in Support of Plaintiff-Appellee Oracle America, Inc. [59], is not in compliance with the rules of this court and is therefore rejected for filing. amicus brief due 03/08/2013. [52678]

02/22/2013 - 73 - Corrected Entry of appearance for Krishnendu Gupta as of counsel for EMC Corporation. Service: 02/22/2013 by email. [52702] 02/22/2013 - 74 - Corrected Entry of appearance for Paul T. Dacier as of counsel for EMC Corporation. Service: 02/22/2013 by email. [52705]

As you can see, both BSA and Emcore will have to refile amicus briefs, as they didn't follow the court's rules. The court tells BSA that their filing was incomplete:
The Brief for BSA The Software Alliance as Amicus Curiae in Support of Plaintiff-Appellee Oracle America, Inc. has been rejected for following reasons:
The amicus brief does not contain a statement regarding authorship and/or funding. Fed. R. App. P. 29(c)(5)
That should be interesting. Oracle joined the Business Software Alliance not long after it lost to Google at trial.

Google's motion as text:

****************

No. 13-1021, -1022

UNITED STATES COURT OF APPEALS
FOR THE FEDERAL CIRCUIT

ORACLE AMERICA, INC.

v.

GOOGLE INC.

UNOPPOSED MOTION FOR EXTENSION TO FILE
COMBINED APPELLEE’S BRIEF AND CROSS-APPELLANT’S BRIEF;

SUPPORTING DECLARATION OF STEVEN A. HIRSCH

MOTION

Under Federal Circuit Rule 26(b), appellee and cross-appellant Google Inc. (“Google”) moves for an extension—from the current due date of March 25, 2013 to the revised due date of May 23, 2013—to file its combined Appellee’s Brief and Cross-Appellant’s Brief (“Google’s First Brief”). Appellant Oracle America, Inc. (“Oracle”) does not oppose this motion and previously received an equivalent extension for its opening brief.

1. As required by Circuit Rule 26(b)(2), Google has informed all other parties that it will seek this extension.

2. As required by Circuit Rule 26(b)(3), Google states that Oracle agreed to the requested extension by telephone and in correspondence on November 20,

1

2012, and in its November 29, 2012 motion for an extension (document 33), which this Court granted (document 34). Oracle’s motion specifically proposed a due date of May 23, 2013 for Google’s First Brief. See document 33 at pp. 3-4.

3. As required by Circuit Rule 26(b)(4), Google states that (A) the date to be extended is March 25, 2013; (B) the revised date sought is May 23, 2013; (C) the number of days of extension sought is 59; and (4) the total number of days of extension previously granted to the movant is zero.

4. As required by Circuit Rule 26(b)(5), this motion is accompanied by a declaration of counsel showing good cause for an extension that exceeds 14 days. See Declaration of Steven A. Hirsch (attached).

Dated: February 21, 2013

Respectfully submitted,

s/Steven A. Hirsch
ROBERT A. VAN NEST
CHRISTA M. ANDERSON
STEVEN A. HIRSCH
KEKER & VAN NEST LLP
[address, phone, fax]

Attorneys for Cross-Appellant
GOOGLE INC.

2

DECLARATION OF STEVEN A. HIRSCH

1. I am an attorney at law duly admitted to practice law in the States of California, New York, and Connecticut and in the District of Columbia, and am a partner with the law firm of Keker & Van Nest, LLP, counsel to defendant, appellee, and cross-appellant Google Inc. (“Google”) in this matter.

2. I have knowledge of the facts set forth below and, if called as a witness, could and would testify to them.

3. I make this declaration as required by Circuit Rule 26(b)(5) to demonstrate good cause for an extension that exceeds 14 days.

4. On November 20, 2012, Mr. Mark Davies (counsel for Oracle America, Inc. (“Oracle”)) contacted me via telephone and corresponded regarding Oracle’s motion for a 55-day extension of time to file Oracle’s opening brief. Google agreed not to oppose Oracle’s motion so long as Google received an equivalent extension. Oracle agreed that it would not oppose Google’s motion for an equivalent extension of time. Oracle’s extension motion stated that, “[i]f an equivalent extension was granted for Google, its initial brief would be due May 23, 2013.” Document 33 at pp. 3-4.

5. Besides the fact that Oracle agreed to this extension and received an equivalent extension itself, an additional good cause for the requested extension is the massive record of this case, described as follows in paragraph 4 of Oracle’s

1

extension motion (document 33): “There are over 1200 entries on the district court docket; the copyright portion of the trial was 12 days long and produced almost 2,800 transcript pages; the jury deliberated for five days; the parties filed 48 motions, applications, and briefs on just the issues of copyrightability and infringement; the district court issued nearly 300 orders; and the record contains approximately 138 gigabytes of pleadings, other filings, orders, trial exhibits, demonstrative exhibits, expert reports, transcripts, and the like.”

6. As an additional good cause for the requested extension, Google notes that six amicus briefs have been filed in support of Oracle:

  • Brief for Amicus Curiae Ralph Oman Supporting the Position of Plaintiff-Appellant and Urging Reversal (document 46) (6,959 words);

  • Brief of Amici Curiae Picture Archive Council of America, Inc. and Graphic Artists Guild in Support of Plaintiff-Appellant Seeking Reversal (document 54) (6,390 words);

  • Brief for Amici Curiae Microsoft Corporation, EMC Corporation, and NetApp, Inc. in Support of Appellant (document 55) (4,965 words)

  • Brief of Scott McNealy and Brian Sutphin as Amici Curiae in Support of Reversal (document 58) (5,753 words);

2

  • Brief for BSA | The Software Alliance as Amicus Curiae in Support of Plaintiff-Appellee Oracle America, Inc. (document 59) (6,622 words); and

  • The Brief of Amici Curiae Eugene H. Spafford, Ph.D., Zhi Ding, Ph.D., and Lee A. Hollaar, Ph.D. in Support of Appellant (document 62) (4,497 words).

7. These six amicus briefs contain a total of 35,186 words—more than 2.5 times the length of Oracle’s opening brief (which contains 13,998 words). Google’s First Brief will be its last opportunity to respond to these additional briefs (except to the extent that they bear on Google’s cross-appeal).

I declare under penalty of perjury that the foregoing is true and correct.

Executed on February 21, 2013.

s/Steven A. Hirsch
STEVEN A. HIRSCH

3

CERTIFICATE OF SERVICE

I hereby certify that on February 21, 2013, I electronically filed the foregoing with the Clerk of the Court for the United States Court of Appeals for the Federal Circuit by using the appellate CM/ECF system. I certify that all participants in the case are registered CM/ECF users and that service will be accomplished by the appellate CM/ECF system.

s/Steven A. Hirsch
Steven A. Hirsch

FORM 9. Certificate of Interest

[See PDF, final two pages]


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