Friday, October 16, 2015

Oracle moves to disqualify damages expert because Apple v. Samsung is practically Apple v. Google

The Oracle v. Google copyright retrial won't take place next May because of a scheduling conflict for Oracle's senior management with a trial against HP, and a new tentative date has not been set yet. But preparations are continuing.

The latest motion was filed by Oracle on Thursday evening California time: a motion to disqualify the court-appointed damages expert, Dr. Kearl. Oracle furthermore argues that no other court-appointed damages expert will be needed, given that the case no longer involves patents.

Here's the motion along with its public exhibits (this post continues below the document):

15-10-15 Oracle Motion to Disqualify Damages Expert by Florian Mueller

I'm familiar with the issues Oracle has raised here because I also followed the Apple v. Samsung trial last year (via the Internet). Oracle argues that the second Apple v. Samsung case in the Northern District of California "was effectively Apple v. Google" (that's also what Samsung's trial counsel told the jury). I looked at the patent infringement allegations in that case, and the case was indeed all about Android--unlike the first Apple v. Samsung case, which was partly about Android but also about designs Google had nothing to do with (if anything, it appears Google had even discouraged Samsung from using those designs).

It became known that Google paid for Samsung's legal fees--in connection with two of the patents-in-suit, to be precise, but still.

Dr. Kearl, the court-appointed expert in Oracle v. Google, was not involved with Apple's patent assertions against Android per se--he did not do a rebuttal of Apple's damages claims against Samsung. Instead, he made Samsung's case for damages against Apple. But Samsung wasn't interested in collecting anything from Apple: instead, it wanted to show to the jury how unreasonable Apple's damages claim of more than two billion dollars over a few narrow software patents was. Oracle points to what Apple told the jury Dr. Kearl's involvement was really about:

"[O]ne of the issues in that case was whether, as Apple argued, Samsung used Dr. Kearl’s analysis to give the jury a low damages number in an attempt to make all patents appear to have little value. Or, as Apple asked the jury, why else would Samsung pay experts $5 million to pursue a $6 million claim if not to try to devalue patents?"

Back then, Apple accurately portrayed Samsung's litigation strategy. The strategy worked nevertheless: ultimately the jury (although chosen from Apple's backyard) awarded Apple only about 5% of what it had demanded. Apple was so disappointed as to request a retrial (that appeal is still ongoing).

The fact of the matter is still that Dr. Kearl's work in that case was only in formal terms about a Samsung damages claim against Apple. In reality, it was about Apple's claims against Google's mobile operating system.

The strongest point Oracle makes in my opinion is the following reference to Samsung's trial argument:

"Samsung, for its part, told the jury that Apple's 'billion dollar numbers are completely unsupported,' and that it would 'show [the jury] how properly to calculate a royalty,' by demonstrating how 'Dr. Kearl calculated these damages.' [...] In other words, Samsung's lawyers directly offered Dr. Kearl's analysis as a rebuttal approach on the Android claims, not just as an affirmative calculation on Samsung's counterclaims."

So, yes, "Dr. Kearl was on the Android side of Apple v. Samsung."

Oracle's memorandum outlines the difficulties it would face if it had to ask Dr. Kearl questions in front of the jury. For example, by asking him very critical questions, Oracle could give the jury the impression of the court having endorsed Google's position.

I live in a jurisdiction where party experts have rather little weight and courts must appoint experts on technical issues and damages unless the questions only relate to what is common general knowledge. But in the U.S., party experts are the norm and court experts are a very rare exception. I remember that the mere appointment of a court expert in this case became the subject of reports in the specialized legal press, showing just how unusual this was.

In a couple of cases in which I'm a plaintiff, I also moved to disqualify damages experts because they had ties with the other side. In one case, pending before the Munich II Regional Court (case no. 5 OH 4622/14), my motion was granted a few months ago despite the two defendants' persistent efforts to keep the expert involved. In the other (much smaller) case, a judge at the Amtsgericht F├╝rstenfeldbruck (a local court, which is below a regional court; case no. 7 H 11/15) denied a motion although the expert himself had already asked to be dismissed, and my interlocutory appeal of that decision is now pending, as is my separate challenge for bias (not related to that decision, though outrageous it was) against that local court judge. The reason I mentioned my own issues with non-neutral court experts is because I feel very strongly that court experts must be neutral, and once there is a way that one party to a litigation can influence the court expert, even if only indirectly, a different expert should be appointed (or none, if none is needed, especially in the U.S., where court-appointed experts are few and far between).

As I wrote last month, I would be extremely surprised if a judge who showed concern in 2012 about the court, including appeals courts, being potentially influenced by bloggers now had no problem with a court-appointed expert--who undoubtedly and massively influences the court and the jury--being aligned with one "camp."

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