Oracle America, Inc. v. Google Inc.

Filing 1167

ERRONEOUS FILING. REPLACED BY #1168 MOTION for Judgment as a Matter of Law ORACLE AMERICA, INC.S RULE 50(A) MOTION AT THE CLOSE OF ALL EVIDENCE FOR PHASE II (PATENT PHASE) filed by Oracle America, Inc.. Responses due by 5/17/2012. (Jacobs, Michael) (Filed on 5/16/2012) Modified on 5/17/2012 (mjj2, COURT STAFF).

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technique documented in this chapter is covered by U.S. Patent 5,367,685.” TX 25 at 389. The

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’685 patent is the predecessor to the ’104. See TX 4015 at 1. Google’s argument that all claims

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of the ’104 patent are broader than the claims of the ’685 patent (ECF 311) means that the ’104

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would cover the technology described in the chapter as well.

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Despite his concern that it was “dangerous” to proceed without knowing what Sun’s

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intellectual property covered (TC 1128 at Rubin Dep. Tr. 16:4-16), Mr. Rubin never asked

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Mr. Lindholm—or anyone else on his team—to review any Sun patents or investigate whether

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Android technology might infringe one of Sun’s patents. RT 3140:17-3141:1 (Rubin), 3027:11-

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3028:4 (Lindholm).

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To counter this evidence, in its closing statement, Google trotted out the Jonathan

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Schwartz November 2007 blog post yet again, claiming it showed Sun had no concerns about

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Google’s patent infringement. RT 4193:2-13 (Google closing). But Android’s source code was

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not publicly released until October 21, 2008—almost a full year later. RT 1719:10-18 (Rubin).

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Google had not even finished developing the Android source code in November 2007, let alone

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publicly released it. See RT 1507:20-1508:18 (Schmidt). Mr. Schmidt’s alleged conversations

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with Mr. Schwartz similarly took place in late 2007 and early 2008 (id. at 1537:3-18)—again,

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well before Google’s source code was released and Sun could have known of Google’s

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infringement.

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When the source code was released, Sun was in discussions with Google over a license to

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Java. See, e.g., TX 1058 (Oct. 7, 2008 Gupta email to Rubin) (“Many thanks for taking time to

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kick the discussion off yesterday”). These discussions continued. On November 24, 2008,

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Mr. Rubin wrote that Sun had asked him “to certify Android through the Java process and

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become licensees of Java.” TX 1002. In February 2009, Brett Slatkin proposed to Eric Schmidt

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that Google buy the rights to Java and “solve all these lawsuits we’re facing.” TX 406 at 1.

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Schmidt wrote back “Certainly a clever idea. I’ll ask our team to pursue.” TX 406 at 1. The

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proposal was also forwarded to Tim Lindholm and Bob Lee, the lead Android core libraries

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developer. TX 326.

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ORACLE AMERICA, INC.’S RULE 50(A) MOTION FOR PHASE II (PATENT PHASE)
CASE NO. CV 10-03561 WHA
pa-1528682

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