Google and Oracle meet for the third and probably final time this week to sort out their differences, as the judge starts to lose his patience. Can nothing prevent a full-blown trial? Guy Daniels reports.
Two meetings down, two failures to reach an agreement in the potentially game-changing patent and copyright case brought by Oracle against Google over Android infringements. Undeterred, Judge Paul Grewal has ordered a further mediation meeting for this coming Friday (originally Saturday). Not only that, but his colleague Judge William Alsup has issued three new deadlines for statement submissions.
The first deadline is noon tomorrow, and requires that oracle submit a statement that lists each patent claim to be asserted at trial. If it’s not on the list, it won’t be discussed and will deemed “foregone”. As Florian Mueller (who is providing the most detailed coverage of this case) explains on his website, Judge Alsup had expressed concern at the start of this action in May that there would be too many patent infringement claims and that the sheer number would overburden the court and the jury. Currently, Oracle are contesting seven patents with three claims each, making a total of 21. Will it drop some of these just to make it easier for the court? Very unlikely. In which case, a stay of judgement is likely, delaying the proposed October 31 trail date whilst the US patents office takes a further and more detailed look.
Then it’s Friday and time for the face-to-face mediation. However, it’s not clear whether or not CEOs Larry Page and Larry Ellison will be expected to take part in the 9am showdown, as their previous involvement in the two earlier meetings didn’t yield any success.
The next deadline is midday Monday, October 3.
Judge Alsup wants Google to address all the Oracle claims, separately, and say which if any they concede, or which they believe to be invalid and why.
The first thing the court needs to do is determine if a claim is valid. Only then does it rule on an infringement. Hence the need for absolute clarity from Google. However, the reality is that Google won’t concede a thing and will contest the whole lot, but it’s the reasons behind their contentions that are important for the judge. For as with his attempt to get Oracle to narrow its list, the judge wants to get a narrow list of specific contentions to work with.
Which brings us to the final deadline; midday Tuesday October 4. The judge wants both sides to state if they want to proceed to trial, or call for a complete or partial stay. Google is likely going to argue for a complete stay, whilst Oracle will no doubt want to rush to trial..
In addition, that judge wants clarity on exactly how much of Oracle’s claim for damages is related to copyright (and potentially very high) and how much to patent infringement (usually lower than copyright claims). Oracle originally claimed that it sought damages in the region of $2 billion, although Google mischievously interpreted that as being closer to $6 billion.
And finally (for now) Judge Alsup has tossed out part of an expert report from Oracle that exceeded the original claims against Android and its alleged Java code infringement. Google claimed that the report, from John Mitchell, referred to three phones that weren’t part of Oracle’s original disclosure back in April – the LG Optimus, the HTC Droid Incredible 2 and the Motoral Atrix.
The judge agreed, writing in his ruling that: “Oracle could have and should have specifically identified all such accused devices.”
Meanwhile, the Android ecosystem holds its collective breath.
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