Judge William Alsup, the federal judge presiding over Oracle's patent and copyright infringement lawsuit against Google, just entered a "proposed trial plan", in which he stated that "the trial will not be in 2011".
The proposed plan, on which the parties can submit comments until November 18, envisions a "trifurcated" (three-pronged) trial:
The first phase would focus exclusively on the copyright infringement claims.
Judge Alsup had thrown out Google's motion for summary judgment against those claims.
At a recent hearing, Judge Alsup expressed hopes that the parties might reach a settlement after the copyright part is decided (whichever way that decision may go). I think that an Oracle victory at that first trial could indeed increase the likelihood of a settlement, but if Google won, I believe the case would go on.
The second phase would focus on patents. I believe the judge still keeps open the option of staying the patent part of the case (in whole or in part) pending reexaminations of the patents-in-suit by the USPTO. Today's proposed plan doesn't mention a possible stay, but that doesn't mean that the idea is off the table.
In phase three, "[a]ll remaining issues will be tried, including damages and willfulness".
This means the judge is inclined to accept Google's suggestion to discuss willfulness only in the remedies phase of the trial. For Oracle, it would be psychologically advantageous to be able to present such incriminating evidence as the Lindholm email as early as possible, which would make the jury much more likely to believe that Google indeed infringes valid intellectual property rights owned by Oracle. Just last week, Judge Alsup denied Google's fourth and final bid to remove the Lindholm email from the evidence file. It can still help Oracle a lot at the remedies stage of the trial, but for the reason I mentioned, Oracle would certainly prefer to show it to the jury as early as possible, which is at least uncertain based on what the judge proposed today.
In a recent post I already mentioned that I discussed that suggestion (right after Google made it) with a reexamination expert and we both agreed that it was a valid suggestion.
Google gets another benefit from a separate remedies trial: it may be able to present to the jury the USPTO's first Office actions according to which most of Oracle's asserted patent claims were preliminarily rejected. Google's argument would then be that the USPTO's first actions indicate (regardless of the fact that they're non-final) that Google had a reasonable basis for believing that Oracle's patents-in-suit were invalid. That might enable Google to avoid a finding of willful infringement.
All three parts of the trial would be put before the same jury. To the extent that evidence presented at one trial is relevant to the issues discussed at a subsequent trial (for example, testimony on infringement issues that comes up at the copyright part but also plays a role for the patent part and possibly for the remedies part), it can be brought up repeatedly. Oracle recently argued against a separate copyright trial, mostly on the basis of significant overlap between the evidence to be presented in both phases.
The trial plan the judge proposed today favors Google, but the reason the judge decided to do this may be that he still believes (as he indicated on previous occasions) that Google is on the losing track, so he may just want to reduce the degree of certainty on Oracle's part in order to increase the likelihood of a settlement. But just like all of Judge Alsup's previous tactical games failed to bring about a settlement, I'm skeptical it will work this time. I think the most likely course of action is that we will at least see a copyright trial.
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