Oracle Shoots Foot, Repeatedly, in Oracle v Google

It’s absolutely amazing that Oracle, having some of the most expensive lawyers on the planet, cannot even follow the rules of evidence and procedure. Oracle cannot even provide expert witness to many of its patent claims. The simple thing required by the judge, they have not done:
” On January 6, 2012, Oracle will provide an identification, for each of the 26 asserted claims, of each Oracle product, Oracle-licensed product, Sun product, or Sun-licensed product (“Oracle Products”) that practice or have practiced the claim. Oracle will also identify the fact witnesses who possess information supporting Oracle’s contentions that the Oracle Products practice or have practiced the asserted claims, as well as provide a summary of testimony Oracle intends to elicit at trial from those witnesses regarding those Oracle Products’ practice of the claims. Oracle will also provide source code citations and/or other documentation supporting Oracle’s contentions that the Oracle Products practice the asserted claims.”

Instead Oracle tried another snowjob having prevented its witnesses from informing Google of many things in depositions and so disqualified them from testifying on some matters at trial as simple as how Oracle’s products practise the claimed patents. This all goes to damages that are surely not capable of reaching $1billion let alone the $billions Oracle demanded. Oracle was ordered to produce citations of source code and did not. The judge is likely to stomp all over Oracle for defying his order.

Typical of Oracle’s response is this:
“1. The ‘104 Patent

Google’s first objection to Oracle’s identification of products that practice the ‘104 patent is that it cannot respond because Oracle supposedly failed “to actually cite any source code or documentation” reflecting how the patent is practiced. (Google Response at 3.) Google repeats this same rote objection for each of the six patents-in-suit. (See id. at 6, 9, 11, 12, 13.) The objection is baseless as to the ‘104 patent and as to the other five patents as well. Oracle identified specific source code files for each of the products it claims practices the six patents. (See, e.g., Oracle Response at 2-12.) These are not “a laundry list of names of various source code files” as Google claims. (Google Response at 1.) To the contrary, Oracle has identified specific source code files relevant to each product or product version — typically less than five files — that illustrate where and how the patent is practiced. (See, e.g., Oracle Response at 2, 12.) If Google felt these responses were somehow deficient, it could have raised that with Oracle before its response was due. But it never did. In fact, although it had a full two weeks to respond, Google’s counsel waited until three days before Google’s response was due to ask for copies of only some of the referenced source code files (which had all been produced last year as part of the parties’ procedure for producing confidential source code). Google did not make a good faith effort to prepare its response or to meet and confer during this two-week period, and if it did not have enough time to review the files to verify Oracle’s position, it has only itself to blame.”

A non-expert naming a file as practising a claim of a patent won’t cut it IMHO. I doubt the judge will be impressed by Oracle’s argument when there’s nothing in the experts’ reports to support the idea that Oracle practised the patents. Google argues that Oracle’s experts are not expert as they had no intimate knowledge during deposition.

see Oracle v. Google – Patent Marking – Closing the Gap

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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5 Responses to Oracle Shoots Foot, Repeatedly, in Oracle v Google

  1. Clarence Moon says:

    I think that it all just comes down to the money. It is easy to cede some sort of software product to the public domain when it is just a characteristic choice. Java was first, but, on the desktop, it is just an alternative to .NET. In the phone and tablet world, though, it is much more of a determinate for the features and functions and performance of the end product and, thus, worth a lot more money if it can be corraled. Sun never gave up the copyright to java, they think, and their new owners are not so magnanimous as Sun once pretended to be. Now Oracle seems intent on pressing their case, just as they have with MySQL.

  2. Yeah, that’s what Oracle told them years after Sun thought Android was just peachy.

  3. Clarence Moon says:

    Well, Mr. Pogson, you can have it your way, but the Register, which is a fairly biased towards open source and Linux sort of an ezine, comes to the conclusion:

    “A reasonable person might take the wording of Lindholm’s email to indicate that Google was aware of the legal need to find an alternative to Java:

    What we’ve actually been asked to do (by Larry [Page] and Sergey [Brin]) is to investigate what technical alternatives exist to Java for Android and Chrome. We’ve been over a bunch of these, and think they all suck. We conclude that we need to negotiate a license for Java under the terms we need.”

  4. The Lindholm e-mail is weak evidence Google will be able to explain to the jury if it ever gets to the jury. After Oracle rattled Google’s chain, Google’s lawyer made inquiries and the e-mail was a result. Google was looking for alternative languages/platforms to use in case the court would ban the use of Java. It provides no evidence that Google intended to violate Sun’s patents. Indeed, Sun was happy with Google’s developments. The judge gets that:
    “Number one, this is August 2010, this is 2010. This is after the Ellison crew has come in, about a month before the lawsuit starts, and says, here’s the patents, we think you’re infringing, you should take a license.

    So this isn’t back in the day when they are working on the project, this is not in ’05, ’06, ’07, ’08, this is 2010. I’m not sure this is even going to come into evidence.
    These are negotiations by the parties —

    THE COURT: Why were they looking for an alternative to Java, then?

    MR. VAN NEST: Because if Oracle comes in and says, okay, you are going to have to spend all this money on a lawsuit, and we are going to seek billions of dollars, the question from the CEO is, is there any other way we can do this and avoid it, altogether?

    Now, let me point out a couple of things. The alternatives we’re talking about here might be simply alternative languages. And again, Mr. Holtzman didn’t dispute that the Java programming language is open to everybody, open to everybody. You didn’t hear him dispute that.

    So what is happening in this e-mail —

    THE COURT: Well, explain that part to me. Because you keep saying that, but weren’t there — wasn’t it open to everyone, so long as there is no fragmentation, or so long as you use their kit? Is it really open to everyone, or were there conditions?

    MR. VAN NEST: The programming language was open to everyone. You could use their virtual machine, if you didn’t fragment. However, just yesterday, the boss — you asked about third parties that have no axe to grind? The former CEO of Sun, the guy making the decisions, said yesterday in deposition under oath, Android is not a fragmentation of Java, Android is a competitive alternative to Java. I regarded Android as a positive thing for Sun. I wish it had been more positive, he said, I wish it had been even more positive, they would have paid me a lot of money, but even as it was, it was a positive, and it is not fragmentation.
    THE COURT: Okay, wait, wait, that’s an important point.

    Who said that?

    MR. VAN NEST: Jonathan Schwartz, who was the CEO and president of Sun at the time, in 2007 and 2008.

    THE COURT: Where is he now?

    MR. VAN NEST: He’s doing his own thing. He left Sun when Oracle came in and acquired because, as he put it yesterday, I thought they already had a CEO. So he is doing his own independent development. And he testified under subpoena yesterday and said Java is not — excuse me, Android is not fragmentation.

    But I want to come back to my —

    THE COURT: I — you said something — I’m going to let you come back, but you also said something I want to make sure I grasp. You said that the Java software is open and unconditional, and it’s only the virtual machine that has this kit; is that right? Did I —

    MR. VAN NEST: The Java — what I said was — close. It’s the Java programming language; the language that you write programs in is open to everyone. And not even Oracle disputes that.

    THE COURT: Okay, wait a minute: Java program language open, unconditional.

    MR. VAN NEST: Right.

    THE COURT: And what is it, then, that is conditional?

    MR. VAN NEST: What’s conditional is, if you want to use Sun — and many other companies developed a virtual machine and a series of code libraries, so let’s call them the Java libraries and the Java virtual machine. Anybody can take a license to that, too. Anybody can take a license to that for free, nobody has to pay a penny for any of that.

    But as to that, there are conditions. The condition is, if you take that license, which again, Your Honor, is open free of charge, if you add your own code to it, you have to make that public.

    THE COURT: All right, I got that distinction.

    MR. VAN NEST: Right.

    THE COURT: So two parts: Does your Android use the Java virtual machine?

    MR. VAN NEST: No.

    THE COURT: All right.”

    That the e-mail is allowed as evidence results from the fact that it was between lower levels in Google and not between the lawyer and the individuals so Google could not easily prove it was a “work product” of the lawyer. If definitely does not show an intent to violate patents which is what Oracle claimed. Once the judge got the timeframe he got that. Particular discussions between individuals about alternatives in the middle of a lawsuit years after the structure of Android was formed is evidence of nothing except that Oracle was messing with Google.

  5. Clarence Moon says:

    From the This Just Handed To Me Department:

    http://www.theregister.co.uk/2012/02/07/lindholm_email_allowed/

    What now Mr. Bluster?

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