Judge Alsup has made an order about the meaning of technical terms in the Oracle v Google suit. One item in the order is:
Both “intermediate form code” and “intermediate form object code” will be construed to mean “executable code that is generated by compiling source code and is independent of any computer instruction set.”

I don’t quite get the legal consequences of such an interpretation but from the viewpoint of computer science, a programme, as source code, defines both algorithms and data structures so the intermediate byte-code must contain both executable and non-executable parts… The judge took Oracle’s position that the byte-code must be executable.

All of this may be moot if the patents in question are rendered invalid. USPTO has made a preliminary finding that some of them are invalid. Further, Android does not use a Java VM so the patents may be irrelevant. The recent order is about defining terms to clarify things for the jury. I hope no one displays byte-code containing data for them. They will then be forced to conclude that data is executable!

It is worrisome that the court could get such fundamental ideas wrong. That is probably the kind of reasoning that allowed the courts to accept the concept of software-patents.

While the judge sided mostly with Oracle about the meanings of terms, he seems to scold Oracle for burdening his court with disputes:
“The recent submissions reveal unrealistic expectations about the judicial resources and time that can be devoted to this case. The Court invites one attorney and one corporate representative per side to meet in chambers on MAY 11 at 7:00 A.M. to discuss alternatives and case management. This hour is necessary because the Court’s trial calendar begins at 7:30 a.m. If either side timely so requests, a court reporter will be present; otherwise, it will be unreported. Each side shall bring to the conference a copy of its own human resources (or other) policy on the number of days of salary/wage-continuation for its employees on jury duty, both as of the commencement of this action and at present.”

Ordering an appearance at 0700 shows some angst. Further, the demand for policies about jury-duty suggests he will use limitations there in his determination to limit the duration of the trial. I don’t think we are going to see 5 years of discovery in this matter.

Google wrote, in a submission to the court,“Only two patents are in inter partes reexamination, the ‘205 and ‘720 patents. The PTO disagreed with Google about six of the eight grounds Google asserted against the ‘205 patent and limited the scope of that reexamination accordingly. The PTO agreed with Google with respect to arguments made against the ‘720 patent and has issued rejections based on those arguments, to which Oracle will be responding shortly. The extent to which – several years from now – the final results in the reexamination could moot the need for a trial here on those patents depends, of course, on the outcome in reexamination. The remaining patents are subject to ex parte reexamination. According to current PTO statistics, the average number of months between an ex parte reexamination request and the issuance of a reexamination certificate is 31.8 months.”

Between USPTO’s findings of invalidity and the judges limiting of numbers of claims, Oracle’s case against Google seems to be weakening. What, if anything, will remain to be resolved at trial is still to be determined, but it may well be that the issues could be too small to bother with a trial and a settlement might result. I hope it does not come to that. The world needs clarity. Having two corporations make a deal does not help the rest of us.

About Robert Pogson

I am a retired teacher in Canada. I taught in the subject areas where I have worked for almost forty years: maths, physics, chemistry and computers. I love hunting, fishing, picking berries and mushrooms, too.
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