Arik Hesseldahl

Recent Posts by Arik Hesseldahl

Judge in Java Case Has Some Tough Questions for Google

A series of questions from the judge hearing the case between Google and Oracle doesn’t seem to bode well for the search giant.

The case, which Oracle brought last August, claiming that Google’s Android operating system infringes on Java patents it owns as a result of its acquisition of Sun Microsystems, has been bogged down over what’s called a Daubert motion, which is a pre-trial challenge aimed at excluding the presentation of certain evidence, usually expert testimony, to the jury. As part of the wrangling, in June Oracle said it planned to seek $2.6 billion in damages in the case.

So today, a notice came down from Judge William Alsup concerning some pointed questions that he intends to ask Google. “It appears that early on Google recognized that it would infringe patents protecting at least part of Java,” Alsup writes in the filing, but that Google later abandoned licensing talks because the terms seemed too expensive. He then goes on to ask, “Does Google acknowledge that Android infringes at least some of the claims if valid?” The next hearing on the matter is July 21 and clearly Alsup has some tough questions for Google’s lawyers.

Oracle, which didn’t comment on the filing, has said that Sun had offered Google reasonable licensing terms, but that Google chose to press ahead with Android without a license. Google didn’t respond to a message seeking comment today. But what it looks like to me is that Alsup is trying to get both parties to agree that some infringement took place. If that’s true, then there’s not much left to fight over — aside from the size of the check Google will write. The text of the notice is below.

ORACLE AMERICA, INC.,
Plaintiff,
v.
GOOGLE INC.,
Defendant.
/
No. C 10-03561 WHA
NOTICE REGARDING
ADDITIONAL QUESTIONS
FOR JULY 21 HEARING

In reading the Daubert briefing, it appears possible that early on Google recognized that it would infringe patents protecting at least part of Java, entered into negotiations with Sun to obtain a license for use in Android, then abandoned the negotiations as too expensive, and pushed home with Android without any license at all. How accurate is this scenario? Does Google acknowledge that Android infringes at least some of the claims if valid? If so, how should this affect the damages analysis? How should this affect the questions of willfulness and equitable relief? Counsel should be prepared to address these issues at the hearing.

Dated: July 12, 2011.

WILLIAM ALSUP
UNITED STATES DISTRICT JUDGE


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The problem with the Billionaire Savior phase of the newspaper collapse has always been that billionaires don’t tend to like the kind of authority-questioning journalism that upsets the status quo.

— Ryan Chittum, writing in the Columbia Journalism Review about the promise of Pierre Omidyar’s new media venture with Glenn Greenwald