Wednesday, October 19, 2011

Court's resource constraints affect Oracle-Google trial: delay or different judge

Bloomberg and Reuters report that Judge Alsup told Oracle and Google at a hearing today that the Halloween trial date, which he had previously declared likely to be postponed, is vacated due to scheduling conflicts. For what I know, Judge Alsup is going to presiding over a gang murder trial, but I haven't been able to corroborate that information I received from one source.

This is the text of the order that the judge entered a few hours after the hearing:

Due to a lengthy criminal trial set to begin on October 24, 2011, the final pretrial conference set for October 24 and the jury trial set to begin on October 31 are both VACATED. Dates for the final pretrial conference and trial will be re-set in due course.

When the judge indicated for the first time, in late August, that the trial date might have to be postponed from Halloween, he said that if it's delayed, "it will be delayed considerably". According to the report, he would still like to ensure a near-term trial, but he can't preside over it personally. The options he outlined include a near-term trial before different judge and possibly a separate first trial on copyright.

Late last night, Oracle filed a case management statement in advance of today's hearing. Oracle takes a clear "all or nothing" position on the scope of a trial: it doesn't believe a separate copyright trial makes sense. Oracle argues that many of the witnesses would have to testify on both patent and copyright infringement issues. Oracle also argues that "[t]he story of this infringement is not divisible" and common elements of the patent and copyright parts of the case might be decided inconsistently by different juries. Oracle finally says that separate copyright and patent trials would "lengthen the overall trial of this case".

In a different context, Oracle actually seemed to keep the door open for a separate copyright trial by arguing that damages could be determined separately for the alleged copyright infringement. In retrospect, it turns out that Oracle just defended its revised damages report but has other reasons for which it doesn't consider a separate copyright trial a good idea.

Apparently, Judge Alsup believes that a first trial on copyright could increase the likelihood of a settlement. I believe the only scenario in which that would work is if Oracle won. In the other event I guess Google will keep on fighting.

Oracle's case management statement also discusses a couple of ideas that Oracle outlined beforehand for the scenario of a postponement. Those ideas are now relevant. Oracle wants to bring two summary judgment motions "to narrow the issues in the case for trial":

  • Oracle would now like to bring a summary judgment motion to have the judge determine that its 37 asserted API design specifications are copyrightable. In August, Google asked for the opposite determination and failed for the most part, but that didn't resolve the issue. It just meant that this would be put before the jury.

    Now Oracle tries to win on this count on summary judgment "to narrow the issues in the case for trial". If the related APIs are found copyrightable, Google can hardly convince the jury that there's no infringement. It always argued that the relevant material was not protected by copyright.

    If Oracle had so desired, it would have had the choice to bring this declaratory judgment action back in August. At the time, Oracle contented itself with a focus on fending off Google's summary judgment. I don't know whether Oracle thought at the time that two competing summary judgment motions would increase the likelihood of a decision in Google's favor. What seems more likely to me based on the record is that Oracle is now optimistic about its chances of winning a summary judgment on copyrightability. Oracle's case management statement quotes from the judge's order dismissing the most part of Google's motion and additionally points out that the standard for copyrightability is not very high.

  • A second Oracle motion would propose to dismiss Google's four equitable defenses (laches, equitable estoppel, implied license and waiver). If Oracle succeeded with that initiative, Google's defenses would be limited to the validity of the asserted patents, the copyrightability of the asserted material (which could be resolved by summary judgment as far as the 37 API-related files are concerned), and the question of whether there actually is an infringement.

It will be interesting to see how Google proposes to make use of the additional time between now and a potentially postponed trial.

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