Thursday, June 21, 2012

Oracle v. Google: Judge enters non-final final judgment, Oracle files final motion before appeal

Yesterday, Oracle and Google met in court for the last case management conference before the appeal. I previously reported that they were "cleaning up and preparing for the appeals process" before the Court of Appeals for the Federal Circuit (CAFC).

The housekeeping hearing lasted only 25 minutes, which Judge Alsup considered "out of character" for the parties to this case.

Later in the day, Judge Alsup entered his "final judgment", which is however not going to be the last word in this dispute. Even the CAFC won't necessarily hand the final judgment -- the case could go all the way up to the Supreme Court. But in this case the appeal is 100% certain to happen and almost 100% certain to be heard, while an appeal from the CAFC to the SCOTUS is not certain to happen (if Oracle wins on appeal, Google may have to settle) and especially not certain to be heard.

In my aforementioned previous post on this case I compared the parties' proposals for a final judgment. Google's proposals was the shorter one, but Judge Alsup's is even more focused. In the following I will quote the three paragraphs of the actual ruling (omitting the intoductory part) and add my commentary below each paragraph.

"With respect to Oracle’s claim for relief and Google's counterclaim for declaratory judgment of non-infringement for the '520 and '104 patents, judgment is entered for Google and against Oracle. With respect to Google's counterclaims for declaratory judgment of invalidity for the '520 and '104 patents, judgment is entered for Oracle and against Google, such counterclaims having been abandoned during trial. With respect to the five remaining patents, claims for relief by Oracle were completely dismissed with prejudice by Oracle (and may not be resurrected except as indicated in the orders of May 3, 2011, and March 2, 2012, with respect to new products). In this regard, it is the intent of this judgment and order that general principles of merger of claims into the judgment and res judicata shall be applicable."

Oracle asked for a reference to the fact that its dismissal of patents had a limited scope and did not preclude future assertions against "new products". The judge granted Oracle's wish but added a sentence to make sure the bar would not be too low for Oracle to bring such new claims.

I don't know about Oracle's appetite for another patent lawsuit over Android, but what I do know is that there are plenty of possibilities. Oracle could assert the same patents against Android device makers. Some of the patents that it dismissed were temporarily deemed invalid by the USPTO, but may ultimately prove valid. One of them (the '720 patent) actually did. If Oracle identifies a factual basis to argue that new products infringe in ways that have not been adjudicated yet, it can even sue Google again over those patents. And Oracle would be free to assert international equivalents of those patents in other jurisdictions. Also, there may be other Java-related U.S. patents that were not asserted in the first lawsuit but can be argued to read on Android.

As for declaratory judgment, Judge Alsup decided that Google actually lost its claim to have the two trial patents ('520 and RE'104), as opposed to considering Google's claim moot. This makes sense: Google withdrew its invalidity contentions only because those had already failed at the USPTO and weren't going to succeed in California (they most probably wouldn't have survived a summary judgment motion, had one been necessary).

"With respect to Oracle's claim for relief for copyright infringement, judgment is entered in favor of Google and against Oracle except as follows: the rangeCheck code in and, and the eight decompiled files (seven '' files and one 'ACL' file), as to which judgment for Oracle and against Google is entered in the amount of zero dollars (as per the parties' stipulation)."

The judge was wondering at the hearing whether there was a "catch" here, but this was no trap by anyone: Oracle simply didn't want to delay its appeal and waste legal fees on a dispute over statutory damages. Oracle is still going for the grand prize here: to bring Android back into the Java fold.

"With respect to Google's equitable defenses, judgment is entered for Oracle and against Google as to waiver and implied license. As to equitable estoppel and laches, no ruling need be made due to mootness."

Google didn't want a mention of the dismissal of its implied license and waiver defenses, but it obviously didn't have a basis for dissuading the judge from it.

After this final judgment, Oracle also filed its final motion for judgment as a matter of law (JMOL). That JMOL motion, or Rule 50(b) motion, addresses various aspects of the case, including patent and copyright infringement, and, out of an abundance of caution, copyrightability. It even asks, "in the alternative" to winning as a matter of law, for a new jury trial on some key issues, arguing that the jury instructions and other pre-trial decisions disadvantaged it (which is actually not unreasonable to say). But footnote 1 of Oracle's filing makes the intent behind it perfectly clear:

"Oracle recognizes granting JMOL on some of the copyright issues would require the Court to overturn all or part of its order on copyrightability. Nonetheless, Oracle brings this motion to preserve its rights on appeal, particularly since the Court structured the trial to accommodate the possibility of the jury verdict being reinstated on appeal. [...] Although not required to do so, Oracle also moves for JMOL on copyrightability out of an abundance of caution. [...]"

In other words, Oracle knows that Judge Alsup is going to deny this motion. I don't know whether Judge Alsup will go into much detail in his denial. It's possible that he'll just point to his previous decisions on some of the items. But he will have to adjudicate this, and that's going to be part of the record. What we're seeing here is an airplane on the tarmac and it's going to take off soon to Washington DC, the seat of the CAFC.

Judge Alsup is definitely an impressive, multitalented person. A character. A masterful case manager who doesn't miss a beat. But some of the reporting, including some Twitter commentary, was just over the top. There was a lot of glorification, almost to the extent of an outright apotheosis of this man. And that's silly.

At the end of the day, he's just one guy. He formed his opinion on copyrightability. Now there will be a panel of more senior judges, and they are going to form theirs. They are intellectual property experts who adjudicate IP issues day in, day out -- small ones and big ones, even much bigger ones than this one. They have a whole lot more experience in drawing the line between intellectual property and competition, in balancing the incentives that intellectual property rights create and the restrictions they impose on others. There's going to be a process that will probably take more than a year and will be completely focused on the key legal issues relevant to this case and to countless future cases.

The standard of review is reasonably high, but not insurmountably high. You can find appellate rulings that suggest that lower court decisions must be treated with the utmost deference, but you can also find any number of rulings that overruled lower courts. No single ruling is the whole truth. It's all about balancing and line-drawing. And that will take place at a much more sophisticated and strategic level now. Judge Alsup merely adopted Google's argument that anything relevant to compatibility must be inherently uncopyrightable because, if you want to be compatible, there's no creative choice involved. Nobody knows whether the CAFC will or will not overrule Judge Alsup. But I have no doubt that Judge Alsup's partially-misguided position on copyrightability will undergo some very, very thorough questioning.

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