Robert Pogson

Rather than $billions for the whole market of stuff, Oracle now has to itemize each and every usage of its valuable intellectual property so that the court can calculate damages, if any, accurately.
“Counsel for Oracle shall identify, for each of the 26 asserted claims, each Oracle product, Oracle-licensed product, Sun product, or Sun-licensed product that practiced the claim during the alleged damages period from January 1, 2007 through July 20, 2010, the time of actual notice. This must be filed by DECEMBER 16, 2011. In making this submission, counsel shall keep in mind that they are officers of the court and full candor is required.

By DECEMBER 30, 2011, counsel for Google shall respond and identify any further products by Oracle or Sun that practiced any of the 26 asserted claims, specifying with particularity which ones and why. Counsel shall keep in mind that they are officers of the court and full candor is required. Mere allegations will not suffice. Google will only list products they can prove practiced the asserted claims.”

“Full candor” is a sweet term, eh? What is the court going to think when Oracle comes back with $348,291 worth of usage of their stuff when Oracle started by demanding $billions? Further, Oracle will have to prove that each and every product informed users of the patents at issue… Imagine 100K such notices on a smart phone! Oracle has stepped into a tar-pit of its own making and has no escape except surrender or humiliation. Which will Ellison choose?

The fact that Android/Linux was the first use of much of this technology means Oracle’s damages must be minuscule because their revenue beforehand was minuscule. Also, because products were not marked, Google is not liable for any damages until Oracle sued. Gotta love it.

In a previous order, Judge Alsup quoted the law:
In the event of failure so to mark, no damages shall be recovered by the patentee in any action for infringement, except on proof that the infringer was notified of the infringement and continued to infringe thereafter, in which event damages may be recovered only for infringement occurring after such notice. Filing of an action for
infringement shall constitute such notice.

If Oracle can find no such products, it’s damage claim is dead. If Oracle can find such products that were not marked, it’s damage claims are greatly reduced. Either way, Google gets to argue that the violations, if any, were minimal while Oracle is trying to prove that Google used key technology from Java. Oracle’s whole patent case is weaker than a wet paper bag.

see Groklaw – Oracle v. Google – Proof of Patent Marking