Thursday, January 12, 2012

Judge says Oracle-Google trial will take two months and hints it could slip into 2013

Earlier today I reported and commented on Oracle's and Google's feedback to the court on the final pretrial order issued last week. Judge Alsup has already entered an order entitled "further rulings regarding comments on final pretrial order", addressing in part the issues raised by the parties and clarifying some of his positions.

While the original order said the case could go to trial "on or after March 19" (note the words "or after"), today's order says that the court "will not set a trial date" for the time being and reminds the parties (which is, however, only a concern to Oracle, not to Google, which would welcome any further delays) of the fact that "many other trials in other cases have already been set, and continue to be set on a weekly basis, over a period extending into next year". That sentence is a pretty clear warning, between the lines, that this trial could easily slip into next year as some issues relating to Oracle v. Google take time to be resolved while the court's trial schedule fills up quickly.

The judge disagrees with Oracle on the time required for this trial. He says that it "will take two months, not 19 days", speaking "from experience". Judge Alsup notes that "[t]he time limits set are almost double the maximum ever used in any trial in the judge’s 12-plus years on the bench". While Google also assumed that this trial would take two months, the judge also disagrees with the defendant on the need for more time to present evidence to the jury in the patent liability phase. Furthermore, he rejects Google's proposal to videotape post-trial-day testimony of third-party witnesses because "[]he Court's docket will not permit this luxury" and he prefers the jury to see and hear "the witnesses fresh each time", though this may require witnesses whose testimony is needed in two or three trial phases to show up more than once.

Oracle asked for clarification concerning the admissibility of willfulness evidence during the early stages of the trial. But Oracle doesn't get any clarification on this now: the judge says that the admission of any such evidence "will be decided on an item-by-item basis".

Today's order doesn't address Oracle's proposal to decide on a possible injunction once Google has been found liable for any kind of (patent or copyright) infringement. While Judge Alsup could still give thought to that proposal some other time, today's order doesn't bode well for that proposal. What the judge says on willfulness evidence indicates that he plans to go forward with his original plan.

Also, today's order blames Oracle for having produced not only one damages report but also a second one that the court decided to throw out in part, with or without a third chance for Oracle. Judge Alsup says:

"[T]he Court will not set a trial date until Oracle adopts a proper damages methodology, even assuming a third try is allowed (or unless Oracle waives damages beyond those already allowed to go to the jury). For this 'delay,' Oracle has no one to blame but itself, given that twice now it has advanced improper methodologies obviously calculated to reach stratospheric numbers."

I believe Oracle will try to come up with a third damages report that meets the court's requirements, and it will probably present one as soon as possible. In the meantime, it must ask for permission to make a third try, but I understand today's order as indicating that a third try is a possibility.

The judge furthermore offers Oracle a deal that would be prohibitively costly: if Oracle waived its right to present the Lindholm email, Google's related petition to the Federal Circuit for a writ of mandamus would be mooted, and the district court would not have to wait for the resolution of the CAFC case, a dependency that Judge Alsup describes as "[a]nother roadblock to setting a trial date". Given the incredibly useful silver bullet that the Lindholm email represents, it wouldn't make sense for Oracle to agree to such a waiver -- not even if the trial date slipped into 2013, which I mentioned before and which the judge mentions in the same paragraph as the Lindholm issue.

While I understand that the judge blames Oracle for not having complied in full with his guidelines on damages, today's order comes across as being a bit too harsh on Oracle since it is not in any way responsible for Google's long-shot petition to the Federal Circuit, which is part of a wider strategy on Google's part to delay resolution of this case and to benefit from this delay commercially. Obviously, threatening with a delayed trial gives the judge leverage only against Oracle, but even if he has leverage of a certain kind, he should use it fairly. Few people know better than Judge Alsup the numerous efforts Google has made to prevent the Lindholm email from being shown to the jury. It's surprising that he's now prepared to reward Google for its delay tactics and for its persistent efforts to prevent the jury from finding out the truth about Google's full awareness of the need for a Java license.

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