This article was originally published by American Lawyer affiliate The Recorder in San Francisco, where reporter Ginny LaRoe has been covering the trial.
Google Inc. took home a defense verdict on Wednesday in its smartphone fight with Oracle Corp. after a jury rejected all claims of patent infringement.
Google lead counsel Robert Van Nest and his rotating team of support from Keker & Van Nest and King & Spalding bested IP litigators from Morrison & Foerster and Boies, Schiller & Flexner, who were unable to secure any significant wins during the multiphase five-week trial.
Oracle, which once touted the whole case as worth $6 billion or more, could walk away with nothing but legal bills. “We are grateful for the jury’s verdict,” Van Nest said as he left court.
Oracle lead counsel Michael Jacobs of MoFo declined to comment. His co-lead counsel, David Boies, was not in court Wednesday.
The 10-member jury delivered the verdict just before 11 a.m. after about five days of deliberations. At one point, it seemed they might hang, as they did on a key question during the copyright infringement phase.
But after one final question in the morning didn’t produce the kind of answer from U.S. District Judge William Alsup that one juror was hoping for, it was over for Oracle.
“I was the only one of the 10 of us who felt the Oracle argument was fairly strong,” said foreman Greg Thompson, 52, of Fremont.
Thompson, who talked to reporters as Oracle lawyers listened in, said he felt like a nail sticking up that finally gets “beaten down.” And he decided Oracle hadn’t met its burden of proof.
The patent-phase verdict further diminishes Oracle’s chances of securing a significant damage award or the big prize of an injunction that would force Android to license Java.
Oracle filed suit in August 2011 claiming Google’s Android mobile operating system infringed Java copyrights and patents, which Oracle gained rights to after acquiring Sun Microsystems Inc. in 2010.
The jury on May 7 said Google infringed the “structure, sequence and organization” of 37 API packages, or application programming interfaces. But Oracle can’t cash in on that finding since the jury deadlocked on Google’s affirmative defense that it only made “fair use” of Java technology.
To date, Oracle has only won on two relatively tiny copyright infringement claims, which could be subject to only statutory damages. Both sides agreed to release the jury from considering any copyright damages while the court considers key legal issues.
Thompson, the foreman, revealed the uphill battle Oracle faced in the first round of deliberations, with all jurors but him believing Google made fair use of Java technology. At one point, the fair-use vote was 11-1 in Google’s favor. Thompson, the only holdout for Oracle, said he got two other people on his side for a final vote of 9-3 (two of the jurors have since been dismissed).
Another juror, according to Thompson, said he kept waiting for Oracle to give him “something to chew on.” “He was waiting for the steak and all he got was parsley,” Thompson reported, as Jacobs and the other lawyers looked on with their best poker faces.
“Some of us had an underlying feeling that something wasn’t quite right about what Google did,” Thompson said, but it wasn’t enough to find for Oracle.
As for the deliberations, Thompson said, “it wasn’t malicious.”
He couldn’t recall any major blunders from counsel, but in general he said it was tough to absorb all of the technical information being “thrown” at them. Lawyers should have drilled in more to the narrow questions being asked on the verdict form.
One younger lawyer made a particularly good impression on a couple of jurors, but not for his legal skills. Daniel Purcell, a baby-faced strawberry blond from Keker & Van Nest who made partner in 2005, was “admired” for “other reasons,” Thompson offered.
The other jurors, five women and four other men, left the court without commenting.
The possibility of a retrial looms on the main copyright infringement question. And Alsup still must rule if the API technology can even be copyright protected, a decision that could change the equation entirely. If he finds its not copyrightable, which is a question of law he has been evaluating almost since the suit was filed in August 2011, then Google wouldn’t face retrial on that claim.
If Alsup finds for Oracle on API copyrightablity, then there could be a redo of Oracle v. Google. Alsup said he will rule on copyrightability next week.
Of course, the case is bound for the U.S. Court of Appeals for the Federal Circuit. Alsup has repeatedly said he expects it go up no matter what the outcome.
Google issued a short statement saying, “Today’s jury verdict that Android does not infringe Oracle’s patents was a victory not just for Google but the entire Android ecosystem.”
Oracle’s statement said it “presented overwhelming evidence at trial that Google knew it would fragment and damage Java.” And it said Oracle will “continue to defend and uphold” Java’s core write-once, run-anywhere principle “and ensure it is protected for the 9 million Java developers and the community that depend on Java compatibility.”