Earlier this month, Federal Judge William Alsup who is presiding over the Oracle vs. Google case, entered his final pretrial order stating that the case would go to a jury trial on or after March 19, 2012. The trial would be trifurcated into three parts: The first part will deal with copyright infringement liability; The second trial phase will address patent infringement liability; and Phase three will deal with “all remaining issues,” particularly with “damages and willfulness.” Google and Oracle were given seven calendar days to file any objections to the pretrial.
Google appeared happy about the trial structure, but was only concerned about the length of the second part of the trial, the part about the patent infringement liability. As for Oracle, they are against the trifurcated trial but instead of going against Alsup, Oracle proposed that the court decide on a possible injunction prior to the third trial phase (damages and related issues). Should there be a break between phase two and phase three, “a new jury would be selected to hear that [damages] phase.”
Judge Alsup then ordered that the court “will not set a trial date” for the time being, but reminded both Oracle and Google 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” and further delays could result into the trial slipping into next year.
In a surprising turn of events, Oracle asked the court to stay or dismiss without prejudice their patent claims for nine months, and possibly even longer, based on the status of the ongoing reexaminations at the end of that nine-month period. Aside from that, Oracle is willing to waive their potential right to submit a new (third) damages report but insists on their right to present the Lindholm email, a key piece of evidence, to the jury. Judge Alsup suggested that the proceedings would go faster if Oracle waived that right but they wont. The question of the admissibility of the Lindholm email is currently before the Federal Circuit.
Oracle encourages the judge to “dismiss the patent claims without prejudice and set a date certain for the trial of copyright liability and copyright damages for spring 2012, followed by a hearing on Oracle’s request for a copyright injunction if Oracle prevails on liability,” if the court doesn’t accept their proposal.
If the court neither stay nor dismiss without prejudice the patent claims, “Oracle requests that the Court set a winter or spring 2012 trial date on both the copyright and patent claims”, to which Oracle would waive their right to present a new damages report and present to the jury only those parts that the court considered acceptable.
The reason why Oracle is so persistent in having a trial as soon as possible stems from Andy Rubin’s announcement that there are thousands of Android devices activated everyday. Simple explanation: if Google is found guilty of patent or copyright infringement, then they would have to pay Oracle. Since Android is widely used, it’s unlikely that Google would just drop it, they would probably sign a patent deal with Oracle which means they would pay royalties to Oracle. So if there are 700,000 Android devices activated everyday, imagine how much money Google owes Oracle? If someone owes you a gazillion dollars, I bet you would do everything to make that person pay as soon as possible.