Oracle America, Inc. v. Google Inc.

Filing 1052

Statement Regarding Trial Exhibit 610.1 by Google Inc.. (Van Nest, Robert) (Filed on 5/2/2012)

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KEKER & VAN NEST LLP
ROBERT A. VAN NEST - # 84065
[e-mail]
CHRISTA M. ANDERSON - # 184325
[e-mail]
DANIEL PURCELL - # 191424
[e-mail]
633 Battery Street
San Francisco, CA 94111-1809
Telephone:
415 391 5400
Facsimile:
415 397 7188

KING & SPALDING LLP
DONALD F. ZIMMER, JR. - #112279
[e-mail]
CHERYL A. SABNIS - #224323
[e-mail]
101 Second Street, Suite 2300
San Francisco, CA 94105
Tel: [phone]
Fax: [phone]

KING & SPALDING LLP
SCOTT T. WEINGAERTNER
(Pro Hac Vice)
[e-mail]
ROBERT F. PERRY
[e-mail]
BRUCE W. BABER (Pro Hac Vice)
1185 Avenue of the Americas
New York, NY 10036
Tel: [phone]
Fax: [phone]

IAN C. BALLON - #141819
[e-mail]
HEATHER MEEKER - #172148
[e-mail]
GREENBERG TRAURIG, LLP
1900 University Avenue
East Palo Alto, CA 94303
Tel: [phone]
Fax: [phone]

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Attorneys for Defendant
GOOGLE INC.

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN FRANCISCO DIVISION

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ORACLE AMERICA, INC.,

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Plaintiff,

Case No. 3:10-cv-03561 WHA
GOOGLE’S STATEMENT REGARDING
TRIAL EXHIBIT 610.1

v.
Dept.:
Judge:

GOOGLE INC.,

Courtroom 8, 19th Floor
Hon. William Alsup

Defendant.

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GOOGLE’S STATEMENT REGARDING TRIAL EXHIBIT 610.1
Case No. 3:10-CV-03561 WHA
661498.01

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I.

The trial record contains no evidence about the meaning of the term “Specification”
in TX 610.1, other than the implied definition in its title.
The Court has asked about the term “Specification,” and specifically about whether the

term “Specification,” as used in TX 610.1, is defined. See RT 2672:3-12. Other than the implied
definition at the top of the document, which suggests that the term “Specification” means either
“Specification: JAVA 2 PLATFORM STANDARD EDITION DEVELOPMENT KIT 5.0
Specification” or perhaps “JAVA 2 PLATFORM STANDARD EDITION DEVELOPMENT KIT
5.0 Specification,” there is no definition of the term “Specification” in the document itself.
The title indicates that the “Specification” that is referred to throughout TX 610.1 is the
specification for the J2SE Development Kit—which would include not only API packages but
also a virtual machine, a compiler and the other elements of the development environment,
including a runtime. This definition would be consistent with and would help explain the
inclusion in the agreement of not only a copyright license but also a patent license (see TX 610.1
(second paragraph) (referring to “any applicable copyrights or patent rights”)).
The trial testimony about this document does not suggest a better or different definition.
Mr. Kurian identified this exhibit as a “specification license” for the “Java 2 Platform Standard
Edition Development Kit 5.0 specification.” RT 370:10-17 (emphasis added). He testified to his
understanding of the rights granted to and obligations accepted by licensees, but did not define
the “specification” to which the rights and obligations pertain. See RT 371:7-381:25. Mr.
McNealy also testified about TX 610.1, claiming that it “looks like” a license to “use the Java 2
Standard Edition development specification.” RT 2052:6-22 (emphasis added). He testified
about his understanding of what a “specification” is, but did not further explain what particular
specification is being referenced in the exhibit. See RT 2052:23-2053:16. In fact, Mr. McNealy
testified that he was “not quite sure specifically” to what TX 610.1 pertained. See RT 2053:172054:10. He then testified only to his general understanding of specification licenses at Sun, and
not about TX 610.1 in particular. RT 2054:21-2056:13. There is no other testimony in the record
about TX 610.1.

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GOOGLE’S STATEMENT REGARDING TRIAL EXHIBIT 610.1
Case No. 3:10-cv-03561 WHA
661498.01

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II.

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The evidence in the trial record about TX 610.2 suggests that the term
“Specification” in TX 610.1 refers to the specification for the entire development kit,
not just the APIs.

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Dr. Reinhold testified that TX 610.2 is “a DVD containing an electronic copy of the Java

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5—the JDK documentation.” RT 672:16-18. He further testified that the DVD “includes the API

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specification for Java 5,” RT 682:18-19, but did not testify that the DVD is limited to the API

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specification. Mr. Lee, Professor Mitchell, Mr. Bornstein and Professor Astrachan were also

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questioned about TX 610.2 RT 1168:21-1176:3 (Lee); RT 1247:1-1253:25, 2279:13-2280:6

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(Mitchell); RT 1836:15-1839:8 (Bornstein); RT 2217:19-2221:10 (Astrachan). None of these

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witnesses were asked any questions about any license pertaining to the material in TX 610.2.
Trial Exhibit 610.2 contains over 200 megabytes of data, including information and

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documentation about the Java language, the Java virtual machine, development tools such as the

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Java Virtual Machine Tool Interface, the Java Platform Debugger Architecture, the Java compiler

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and the Javadoc Tool. See TX 610.2. In short, as suggested above, the term “Specification” as

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used in TX 610.1 appears to refer to documentation for far more than just the 166 J2SE API

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packages. Finally, the more than 200 megabytes of data in TX 610.2 includes a file named

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“/docs/relnotes/license.html,” which appears to be the same as TX 610.1. However, there is no

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testimony in the record about this electronic file, and thus no evidence that the license pertains to

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anything other than the entirety of the materials that comprise TX 610.2.

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III.

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There is no evidence that anyone at Google ever saw the Sun “specification license.”
As noted above, only two witnesses—Messrs. Kurian and McNealy—were questioned

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about TX 610.1. Neither of them is or was a Google employee. Two former Google employees,

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Messrs. Lee and Bornstein, were questioned about TX 610.2, but neither was asked whether he

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had ever seen the license file that is part of that exhibit. Two Google witnesses were asked about

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specification licenses generally: Mr. Bloch testified that he didn’t “know what a specification

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license is,” and Dr. Schmidt was also unfamiliar with the term. RT 829:1 (Bloch); RT 1558:25-

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1559:4 (Schmidt) (“Q. Do you know whether or not—you know that one of the kinds of licenses

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that Sun offered was a specification license; did you know that? A. Again, I’m not familiar with

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the specific Sun licenses that were available.”). In short, there is no evidence that anyone at
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GOOGLE’S STATEMENT REGARDING TRIAL EXHIBIT 610.1
Case No. CaseNumber

661498.01

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Google ever saw TX 610.1.

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Dated: May 2, 2012

KEKER & VAN NEST LLP

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By:

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/s/ Robert A. Van Nest
ROBERT A. VAN NEST
Attorneys for Defendant
GOOGLE INC.

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Mr. Cizek did identify a “Sun Community Source License” entered into between Sun and
Danger. See RT 1061:3-8. The document was signed on behalf of Danger by Henry Nothhart.
See TX 1026 at 15. There was no testimony that any Danger employee who later became a
Google employee ever saw this document. The document is very different from TX 610.1.
Compare TX 1026 with TX 610.1. Finally, although TX 1026 does include the term
“Specifications,” that term is defined to mean “specifications for the Technology and other
documentation, as designated on the Technology Download Site . . . .” TX 1026 at 18.
Technology, in turn, is defined to mean “Java 2 Micro Edition” (i.e., not the Java 2 Standard
Edition that is referenced in TX 610.1). See id. at 18, 19. Thus, even assuming former Danger
employees who now are at Google ever saw TX 1026—and there is no evidence to support such
an assumption—that has no bearing on the meaning or possible relevance of TX 610.1.
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GOOGLE’S STATEMENT REGARDING TRIAL EXHIBIT 610.1
Case No. CaseNumber

661498.01