I think the key is in (from the order):
To prevail on a waiver
defense, Google must show by a preponderance of the evidence that Oracle and/or
Sun, with full knowledge of the material facts, intentionally relinquished its
rights to enforce the rights it now asserts. Waiver of a known right must be
"manifested by some overt act indicating an intention to abandon that
right."
Google's best evidence on the issue of waiver
is Jonathan Schwartz's testimony that Sun made a decision to not sue Google
following the release of Android. This decision, however, is not an overt
act.
The several congratulatory communictions do not,
as discusssed above, constitute a clear indiction that Oracle and/or Sun
intended to relinquish its rights as to the entirety of its
platform.
Save for a total relinquishment, Google has
to prove an overt act by Oracle and/or Sun relaying its intent to abandon rights
as to the specific elements asserted here.
It seems to me that
Judge Alsup recognized the blog as valid. He just didn't agree that it was
sufficient for the legal purpose it was intended to serve. In other words, it
could have been an official response by the BOD in a Press Release... and it'd
still have the same limited value.
That's just how I understand why he
decided as he did. After all, he didn't discount the validity of the blog.
Just the value it had with regards what it was supposed to prove.
RAS[ Reply to This | Parent | # ]
|
