Tuesday, December 20, 2011

Oracle wants Google trial to start in January because Java 'is now losing ground to Android'

Late on Monday by local time, Oracle and Google filed another joint pretrial statement requested by Judge Alsup. The word "joint" may be misleading: they disagree on all of the important issues and agree only on undeniable, simple facts. But the judge likes to have one document in which the parties presents their views together so he can focus on the areas of disagreement.

Their disagreement over the trial format -- Oracle wants one large trial, while the judge proposed a trifurcated (three-part) trial, an idea supported by Google -- is reflected again by their latest filing.

The most interesting part of Monday's filing is the one that proposes different trial dates. Oracle asks for the trial to begin as soon as the court-appointed damages expert has submitted his report. That report is due January 19, 2012. Pretty much everything else is already in place for a trial. Oracle therefore "proposes that this case go to trial on January 20 or 23, 2012". Google denies that it's stalling and formally says that it "also proposes trying this case as early as possible", but given the complexity of the case and unspecified "scheduling issues for the Court, the parties, and counsel", it argues that starting in January must be ruled out entirely and says that it may even be "difficult to conduct trial before July 2012".

Google's commitment to an early trial date is lip service. Google obviously can't tell the court that it would love to slow-roll this process. It needs to work toward this goal by indirect means. It must make requests that are legitimate per se and justified in different ways but can have a dilatory effect:

  • Google has repeatedly -- and as recently as in October and November -- requested a stay of the case for the duration of ongoing patent reexaminations (which could still take a couple of years).

  • In November, Google also asked a federal appeals court to overrule the district court on the Lindholm email, a key piece of evidence.

  • In the new filing, Google says that it "was prepared to try this case beginning in late October, at the original trial setting". In May, Oracle and Google agreed on the last day of October -- Halloween -- as a proposed trial date. But that was the latest date they could agree on since the judge had previously told them he wanted an October trial date. So when Google supported a seemingly early trial date, it did so only because it had no other choice.

All of this is legitimate and normal. Still it's important not to be misled about the parties' intentions.

Oracle argues that a trial must take place soon in order to avoid further irreparable harm. Google, obviously, disagrees.

In the context of irreparable harm, Oracle points to the "continued migration of device manufacturers and application developers from Java to Android" and to the following developments:

"Android's growth in the mobile device market has been exponential, steadily diminishing Java's share. For instance, Amazon's newly-released Kindle Fire tablet is based on Android, while prior versions of the Kindle were Java-based. Android has been gaining in other areas as well, with Android-based set-top boxes and even televisions appearing this year. These are markets where Java has traditionally been strong but is now losing ground to Android. The longer Android is allowed to continue fragmenting the Java ecosystem, the more serious the harm to Java becomes, and the more difficult it is to try to unwind. Oracle suffers harm in the form of lost licensing opportunities for its existing Java platform products, and the enterprise-wide harm from fragmentation of Java, which reduces the 'write once, run anywhere' capability that has historically provided Java such great value."

The Kindle is certainly an interesting example.

One of Google's counterarguments is that Oracle has "no competing mobile platform of its own", but Oracle argues that Sun was forced to abandon a Java-based mobile platform "because of Android" and that Android is being adopted "to replace Java ME and other Oracle Java products" not only on smartphones, but also "set-top boxes, tables, and numerous other small-form-factor devices that previously licensed Oracle's Java products".

The parties also have a different take on the effect Android has had and continues to have on the size of the Java developer community. Google points to an Oracle press release that has a "Java Facts and Figures" section on page 2 and claims "9 million developers worldwide", a number that Google says has "grown by 2.5 million since Oracle [sued Google]".

While Oracle concedes that "[t]he rise of Android has increased the number of Java developers", it says that "Oracle has not benefited" since "Android is unlicensed and incompatible with the Java platform".

At any rate, it's obvious that Oracle pursues different objectives in its marketing communications than in its litigations. The judge will certainly understand that. Even if the judge assumed that the truth is somewhere in the middle between the two portrayals of Java's situation, that would be more than enough of a reason to support a near-term trial date.

The final part of Oracle's argument in favor of going to trial sooner rather than later is that "Google's internal documents show Google deliberately made the choice to infringe, gambling by pushing forward with Android without a license, even though it knew one was required" and complains that "[t]hat gamble increasingly pays off the longer trial is delayed". Oracle knows that the judge is receptive to that argument -- if not in formal terms, then at least psychologically. The judge has on a couple of occasions, at public hearings as well as in orders he entered, made reference to strong suspicions of Google infringing willfully.

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: