[Update on September 7] Judge Alsup gave Google short shrift and overruled its objections right away. More detail on that decision in a new section at the end of this post. [/Update]
A week ago, Judge William Alsup of the United States District Court for the Northern District of California entered an order regarding jury selection that indicated a possible (though by far not certain) postponement of the trial date. Based on the current schedule, the trial would begin on Halloween, but if a criminal trial (totally unrelated other than needing court resources and presumably Judge Alsup's involvement) scheduled for October 17 begins as planned, then the Oracle v. Google trial would be postponed.
Google just filed its objections to the judge's proposal for how to select the jury members. I have uploaded Google's letter to Scribd.
The gist of this is that Google doesn't want the court to select the jury members for a possible Oracle v. Google trial -- if that one indeed begins on Halloween -- from the same pool of candidates that would otherwise be used for a criminal trial. Google formally objects to the use of a "pre-cleared venire" (TheFreeDictionary's definition of venire in this context is "[t]he panel of prospective jurors from which a jury is selected"):
"The Court's proposed procedure—using only the group of potential jurors pre-cleared for a multi-month criminal proceeding—is less likely to provide a fair cross section of the community than the usual venire available in patent-infringement cases such as this one. As a practical matter, most potential jurors who ordinarily would be available to serve on a three-week civil trial will have significant personal or professional commitments that may make them ineligible to serve in a multi-month criminal trial. Accordingly, the pre-cleared group will be smaller, less diverse, and less representative than the broader group that would otherwise be available for selection."
Google refers to a case in which a study comparing jurors in long and short federal trials identified "a number of disquieting differences" and makes this demand:
"To maximize the size and diversity of the venire, enhance the qualify of the jury-selection process, and increase the likelihood that the jury eventually selected will provide the parties with a fair cross section of the community, Google respectfully requests that the Court not use the pre-clearance process described in the Order. Instead, Google asks that the Court employ the venire and jury selection process that the Court ordinarily would use for a three-week trial in a civil case of this nature."
So why would Google believe that it benefits from a different selection than the one proposed by the judge? Obviously, Google's lawyers ask for this because they believe it increases the likelihood of a more favorable outcome for their client, not because they want to uphold the principle of diversity as a means to an end. Here are some possible explanations:
They might hope that the logistical effort required for this would further reduce the likelihood of the trial starting on Halloween. I'm not sure that this is part of the reason, but it might be. It would certainly be consistent with Google's procedural tactics in this case.
To the extent that the available evidence is in (or has been referenced by materials in) the public record, it seems that Oracle has at least a couple of Google-internal documents that could easily convince a jury at a high level of abstraction that Google's Android team is a bunch of infringers. (Apple also just brought some allegations that incriminate Andy Rubin.)
Google's best chance to overcome a general feeling of the existence of an infringement is to address a reasonably tech-savvy audience that will really talk about the details of what distinguishes Dalvik (Android's virtual machine) from a Java virtual machine, prior art that might render various of the claimed inventions obvious, or perhaps also some of the open source issues Google would like to use as a defense (even though there's no indication that the judge himself is impressed by that kind of argument).
If the jury members were, as envisioned by Judge Alsup, chosen from a pre-selected pool of people that are available for a multimonth trial as opposed to people available for a three-week trial or maybe just one half of such a trial (since there will be two trials here, one on liability and one on damages), there might be an overrepresentation of senior people and others who for whatever reason don't have a job. For its purposes, Google would presumably be more comfortable with a younger audience -- with at least some members of what one might call the "Google generation" -- that could be sympathetic to Google and would be more likely to look into the technical detail that's involved in this case. This is a Northern California trial. A jury selection that's representative of the population of that area would be disproportionately tech-savvy -- but if there's a preselection based on who can spend several months on a jury, the picture could be quite different.
Even though NorCal is, on average, as liberal as it gets, a jury that is older on average than the general population there might be, relatively speaking, more "conservative" in terms of its approach to intellectual property, and as a result, less forgiving of infringement and less likely to accept excuses (estoppel etc.) for it.
Interestingly, Google appears to want a reasonably tech-savvy jury but recently told the court it wouldn't want techies to testify as experts on the value of Java to Android. I discussed that surprising discrimination against geeks and attributed it to Google's likely concern that programmers would be more likely to consider Oracle's patent-protected technologies key to the commercial value of Java while the alternative kind of witness preferred by Google -- someone with a marketing background -- would be more likely to believe that features aren't as important as branding, advertising and other success factors.
Google's lawyers generally object to a lot of what Judge Alsup proposes. I watch a number of lawsuits and they really raise their hand all the time and protest. Some of it may be part of a strategy to "preserve the record", i.e., keep options open for questions of law that could be raised in a possible appeal. For example, Google's lawyers' declared intention to appeal Magistrate Judge Ryu's decision on the Lindholm document to Judge Alsup could be part of that strategy. Today's objections against the jury selection process could also serve that purpose.
Google's lawyers generally don't seem to be too happy about Judge Alsup's plans for how to conduct the trial. For example, they also spoke out against the role of a court-appointed damages expert as a witness who will testify before the jury. They would have preferred for that expert to be merely an adviser to the judge. But Judge Alsup appointed a court expert and decided to have him present his findings to the jury. There's a very interesting law.com article on this. It talks about how unusual this kind of appointment is and quotes an IP litigator as saying that "whatever the independent expert says is taken as gospel" by the jury because they know he's independent, unlike the experts who are paid by the parties. I don't want to digress to much into that but I recommend that article, again.
I guess we may see even more objections by Google's lawyers in the build-up to the trial...
UPDATE: Judge gives Google short shrift, overrules objections
Once again -- not for the first time and probably not for the last -- Judge Alsup has overruled Google on a case management issue. In an order entered the day after Google's objections were filed, he notes that Oracle didn't file any objections by the deadline he had given the parties to comment on his proposed jury selection procedure, and finds that "Google's predictions about the composition of the pre-cleared pool may prove accurate, but Google has not identified any cognizable right that would be violated by using such a pool".
The jury policy cited by Google "does not require maximizing the diversity of a jury poool as Google reuqest; it only requires that the pool constitute 'a fair cross section of the
community.' Google has not shown that the pre-cleared pool would not be a fair cross section of
the community.". On that basis, the order concludes with the following paragraph:
"In order to establish a prima facie violation of the fair-cross-section requirement, the defendant must show (1) that the group alleged to be excluded is a 'distinctive' group in the community; (2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that this underrepresentation is due to systematic exclusion of the group in the jury-selection process." [...] Google has not identified a “distinctive” group that would be excluded from the pre-cleared pool. Groups that have been recognized as distinctive for purposes of this analysis typically are defined by race, ethnicity, gender, or some other discrete characteristic. Google cites no authority showing that individuals with "significant personal or professional commitments" have been or should be recognized as a distinctive community group. Google's objections to using the pre-cleared pool are OVERRULED.
In other words, if Google wanted a younger, potentially tech-savvier audience for its purposes, that wouldn't have anything to do with the "fair cross section" requirement under U.S. law.
If you'd like to be updated on the smartphone patent disputes and other intellectual property matters I cover, please subscribe to my RSS feed (in the right-hand column) and/or follow me on Twitter @FOSSpatents and Google+.
Share with other professionals via LinkedIn: