After the Oracle/Google lawsuit was postponed at the end of October 2011 it dropped out of the headlines for a while. There have been recent developments so it's time for a catch-up.
Although a trial date of "on or after" March 19 had been set in a pre-trial order issued earlier this month the latest order from Judge William Alsup says that the court is not going to set a date for the time being and, reading between the lines implies that the trial could easily slip onto 2013.
Judge Alsup lays the blame for the indefinite delay on Oracle which, despite the fact that it want the proceedings to go ahead as soon as possible, has repeatedly raised objections to Judge Alsup's "trifurcated" (three-part) plan for the trial:
Phase 1 - Copyright infringement claims
Phase 2 - Patent liability
Phase 3 - Remaining issues including damages and willfulness
Google, which in any case prefers the delay to be as long as possible, accepted the three-phase plan and only had a relatively minor concern over the time allotted for the second part of the trial in the latest round of the to-and-fro of petitions, briefs and orders.
By contrast, as well as formally renewing its objections to trifurcation, Oracle recently proposed a "change in sequencing" in which the court would decide on a possible injunction prior to the third phase and address copyright willfulness in the first phase and patent willfulness in the second phase.
The latest document from Judge Alsup is entitled "further rulings regarding comments on final pretrial order", doesn't address the idea of an injunction and his comments on willfulness evidence indicates that he's sticking with his version of the plan. What he does do is to disagree with Oracle's estimate of 19 days for the trial, estimating that it will take two months, "almost double the maximum ever used in any trial in the judge's 12-plus years on the bench".
It isn't just the length of the trial that has caused the delay. The order refers explicitly to Oracle's claim for damages. The court has already been dissatisfied with two damages reports and now Judge Alsup says:
"[T]he Court will not set a trial date until Oracle adopts a proper damages methodology, even assuming a third try is allowed (or unless Oracle waives damages beyond those already allowed to go to the jury). For this 'delay,' Oracle has no one to blame but itself, given that twice now it has advanced improper methodologies obviously calculated to reach stratospheric numbers."
The other factor that Judge Alsup describes as a "roadblock to setting a trial date" is the fact that Google has lodged an appeal with the United States Court of Appeals for the Federal Circuit (CAFC) asking for attorney-client privilege for the Lindholm email, written by a Google employee and referring to abortive attempts to find an alternative language for Android and Chrome and including the phrase:
"We conclude that we need to negotiate a license for Java."
Judge Alsup suggests that if Oracle waived its right to present the Lindholm email then the trial could go ahead without waiting for the CAFC. Given that Lindholm email constitutes evidence that Google was aware of the need for a Java licence, Oracle is not likely to want to take up this deal, even though it will be dismayed by the continued delay.
Florian Mueller, who follows, digests and presents the tortuous development of this lawsuit on his FOSS Patents site comments:
Obviously, threatening with a delayed trial gives the judge leverage only against Oracle, but even if he has leverage of a certain kind, he should use it fairly. Few people know better than Judge Alsup the numerous efforts Google has made to prevent the Lindholm email from being shown to the jury. It's surprising that he's now prepared to reward Google for its delay tactics and for its persistent efforts to prevent the jury from finding out the truth about Google's full awareness of the need for a Java license.
So what does all this mean for Android developers? The indication that Judge Alsup doesn't seem to be in favor of an injunction is probably good and so is the fact the he is putting pressure on Oracle to reduce its damages claims. The delay also means that it may still be the Patents Office which takes the important decisions in this fight.
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