Google Is Probably the Big Winner in First Phase of Oracle Trial

Ginny LaRoe

The Recorder

05-09-2012

The verdict is in. But no one went home a clear winner.

The jury hearing Oracle Corp.'s smartphone suit against Google Inc. found for Oracle on a major question of copyright infringement Monday, saying Google had infringed "the overall structure, sequence and organization of copyrighted works." But it deadlocked on a second crucial part of that question: whether Google made fair use of that Java technology in its hugely successful Android operating system. That prompted Google lead counsel Robert Van Nest to move for a mistrial on that infringement question, which is where Oracle had hoped to cash in on the eye-popping damage figures, at one point estimated at around $1 billion.

"Given the law on fair use and affirmative defenses, you cannot receive a partial verdict on question one," said Van Nest, of Keker & Van Nest. Oracle lead counsel Michael Jacobs of Morrison & Foerster said he would save his arguments for the briefs, which will be filed this week. He will be asking for Alsup to rule, as a matter of law, that Google's fair use defense fails. Google also is seeking judgment as a matter of law.

So it will be up to U.S. District Judge William Alsup to decide who will walk away "mashing their teeth," as he warned in a hearing before trial kicked off on April 16.

The only firm victory for Oracle on Monday came from a question about nine lines of computer code, which Google claims has absolutely no value. The jury found that Google's use of something called rangeCheck method infringed Java copyrights. Oracle acquired Java's creator, Sun Microsystems Inc., in 2010.

Making it clear that Oracle wasn't the day's victor, Alsup noted that save those nine lines of code, "there has been zero finding on liability on any copyright so far."

Google prevailed on a second copyright infringement question, also dealing with Google's use of Java technology in Google's Android mobile platform. The jury said Google did not infringe copyrights on the "documentation" for 37 so-called API packages, or application programming interfaces, taken as a group.

So unless Alsup hands the major copyright infringement question to Oracle as a matter of law, the stakes are much lower than they looked at the outset. In an exchange with David Boies, the Boies, Schiller & Flexner partner who is co-lead counsel for Oracle, the judge said it "borders on the ridiculous" to seek infringer's profits for those nine lines of infringed code. There are 15 million lines of code in Android.

Google spokesman Jim Prosser, who was in court for the verdict, issued a brief statement. "We appreciate the jury's efforts, and know that fair use and infringement are two sides of the same coin," Prosser wrote. And referring to another question of law still up to the judge, which could turn things even more in Google's favor, he said, "The core issue is whether the APIs here are copyrightable, and that's for the court to decide. We expect to prevail on this issue and Oracle's other claims."

Oracle spokeswoman Deborah Hellinger issued a statement saying the "overwhelming evidence demonstrated that Google knew it needed a license," adding that "every major commercial enterprise — except Google — has a license for Java and maintains compatibility to run across all computing platforms."

While the verdict was a nearly unpredictable mixed bag from top to bottom, the partial verdict on question one was hardly a surprise. Two notes from the jury focused on Google's fair use defense. By late Thursday, there were indications they were at an impasse. Friday, the foreman reported they were deadlocked on just one question. They had deliberated for just over four days.

Making good on his promises to push the remaining phases of the trifurcated trial along quickly, Alsup had counsel back at work before the jury just minutes after the copyright verdict was read.

After a short educational video on patents, Jacobs delivered his 45-minute opening on the two patents Oracle says Google infringed.

"I think you'll be pleased to know fair use is not at issue in the patent phase," Jacobs said, prompting smiles, even from opposing counsel.

This article originally appeared in The Recorder.