Java Developer Magazine

Google last week lost its shot at getting the Android trial delayed while the Patent and Trademark Office re-examines Oracle's Java patents.

Presiding judge William Alsup said the trial is still on for Halloween.

Google did get its Daubert hearing. The judge told Oracle to find a new theory and bring its claims of $2.6 billion or $6 billion or whatever it is within the realm of reality.

The judge outlined a possible alternative approach that starts at $100 million, chump change by Oracle standards even with trebling, leaving Florian Mueller - who's been following the case wall-to-wall and making some pretty mind reading-style guesses about what comes next - to conclude that Oracle's best big money bet lies in getting Android enjoined so it can negotiate a big fat per-unit royalty from Google.

Such a route could lead to the International Trade Commission (ITC).

Not that Judge Alsup is injunction-averse.

One of Oracle's lawyers read a Google-internal e-mail to Android chief Andy Rubin in court last week that recounted investigating alternatives to Java for Android and Chrome [note Chrome] and ended "We've been over a hundred of these and think they all suck. We conclude that we need to negotiate a license for Java."

The judge reportedly told Oracle's lawyer, "That ought to be big for you at trial." Then turned to Google's lawyer and said, "You're going to be on the losing end of this document with Andy Rubin on the stand. You think about that. And I want to say this: willful infringement is final. There are profound implications of a permanent injunction. I'm not saying there is willful infringement, but that is a serious factor when you're considering an injunction."

The judge must have been thinking of a little gem written by Rubin himself that could sink Google if this stuff gets to a jury that reads, "If Sun doesn't want to work with us, we have two options: 1) Abandon our work and adopt MSFT CLR VM and C# language - or - 2) Do Java anyway and defend our decision, perhaps making enemies along the way."

Google doesn't seem to be particularly popular with Judge Alsup who thinks it practices "Soviet-style negotiation" as in "what's mine is mine and what's yours is negotiable" and rolled the dice on Java litigation.

Although the judge told Oracle to bring its claims down to earth, he's going to let it argue "network effect," and add in a piece of Google's US search revenues, provided the numbers are "supported by evidence and not purely speculative."

And that's a big loss for Google, possibly bringing its exposure back up into Oracle territory. If Oracle can prove infringement the judge figured Google's bill would "probably [be] in the millions, maybe in the billions."

Judge Alsup's problem with Oracle's claim is that it treats its patents as if they covered all of Android. He wants Oracle to come back with a damages report 35 days before the pre-trial conference that apportions "the total value between the specific infringing features versus the rest of Android." Of course it's still unclear what patent claims Oracle will assert at trial since the judge has already made it clear he doesn't want it to be as many as Oracle would like.

See http://fosspatents.blogspot.com/2011/07/judge-orders-overhaul-of-oracles.html/.