Tuesday, January 24, 2012

Oracle accepts judge's proposal, will submit new damages report -- mid-April trial still possible

On Friday (January 20, 2012), I reported on Judge William Alsup's proposed course of action in the Oracle v. Google litigation and offered the following prediction:

My guess is that Oracle will accept this offer because other than costs, which are going to be sizable in absolute numbers but small compared to what's at stake, there's no colorable drawback that Judge Alsup's proposal has over Oracle's own proposals.

Today Oracle has indeed accepted the deal. By doing so, Oracle has once again demonstrated that damages are not its number one priority. Otherwise Oracle would have had to keep fighting for its previous damages claims. Instead, Oracle puts its money where its mouth is and agrees to pick up the costs arising from the presentation of a third damages report. I explained the "deal terms" in the aforementioned blog post, so I don't have to go into detail again here.

Oracle had urged the court to take this case to trial at the earliest opportunity. It stressed Android's commercial success and the threat it poses to Java. Oracle even offered to put its patent infringement claims on the back burner in exchange for a near-term copyright trial. The judge rejected that proposal but the deal he offered, and which Oracle accepted, is a win for Oracle. It's clearly Oracle's best shot at a swift resolution of this matter, and it doesn't even have to indefinitely postpone the resolution of its patent infringement claims.

Theoretically, Oracle's third damages report could still arrive at a similar number as the second one ($2.7 billion, slightly up from the original $2.6 billion claim). The most important difference between the third damages report and the previous ones will be a fine-grained apportionment of damages to the different intellectual property rights (even down to the level of different claims of the same patent) at issue.

But even if Oracle's third damages report arrived at a lower amount, any such reduction would be much less important than the prospect of a near-term trial. Also, the relevance of the parties' own damages calculations is rather limited if the jury mostly relies on the opinion of a court-appointed independent expert.

For now I wouldn't book a flight to San Francisco in mid-April for this trial. There is still a considerable risk of further delay. In particular, Google might try to slow-roll the process since the judge indicated that the trial would have to be postponed to the last four months of the year if mid-April doesn't work out. But Oracle has demonstrated its willingness to do its part. One doesn't have to agree with Oracle on all of the issues (I agree with them on some and disagree on others) to recognize that its words and its actions are consistent.

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