Oracle America, Inc. v. Google Inc.
Filing
1169
RESPONSE (re #1168 Amended 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)--REPLACES [DKT 1167] ) filed byGoogle Inc.. (Van Nest, Robert) (Filed on 5/17/2012)
1
2
3
4
5
6
7
8
9
10
11
12
KEKER & VAN NEST LLP
ROBERT A. VAN NEST - # 84065
rvannest@kvn.com
CHRISTA M. ANDERSON - # 184325
canderson@kvn.com
DANIEL PURCELL - # 191424
dpurcell@kvn.com
633 Battery Street
San Francisco, CA 94111-1809
Telephone:
415 391 5400
Facsimile:
415 397 7188
KING & SPALDING LLP
DONALD F. ZIMMER, JR. - #112279
fzimmer@kslaw.com
CHERYL A. SABNIS - #224323
csabnis@kslaw.com
101 Second Street, Suite 2300
San Francisco, CA 94105
Tel: 415.318.1200
Fax: 415.318.1300
KING & SPALDING LLP
SCOTT T. WEINGAERTNER
(Pro Hac Vice)
sweingaertner@kslaw.com
ROBERT F. PERRY
rperry@kslaw.com
BRUCE W. BABER (Pro Hac Vice)
1185 Avenue of the Americas
New York, NY 10036
Tel: 212.556.2100
Fax: 212.556.2222
IAN C. BALLON - #141819
ballon@gtlaw.com
HEATHER MEEKER - #172148
meekerh@gtlaw.com
GREENBERG TRAURIG, LLP
1900 University Avenue
East Palo Alto, CA 94303
Tel: 650.328.8500
Fax: 650.328.8508
13
14
Attorneys for Defendant
GOOGLE INC.
15
UNITED STATES DISTRICT COURT
16
NORTHERN DISTRICT OF CALIFORNIA
17
SAN FRANCISCO DIVISION
18
ORACLE AMERICA, INC.,
19
Plaintiff,
20
v.
21
Case No. 3:10-cv-03561 WHA
GOOGLE INC.’S OPPOSITION TO
ORACLE AMERICA, INC.’S RULE 50(A)
MOTION AT THE CLOSE OF ALL
EVIDENCE FOR PHASE II
GOOGLE INC.,
22
Defendant.
Dept.:
Judge:
Courtroom 8, 19th Floor
Hon. William Alsup
23
24
25
26
27
28
GOOGLE’S OPPOSITION TO ORACLE’S RULE 50(A) MOTION FOR PHASE II
Case No. 3:10-CV-03561 WHA
666096.01
1
TABLE OF CONTENTS
2
3
I.
INTRODUCTION ...............................................................................................................1
4
II.
5
A REASONABLE JURY COULD ONLY FIND THAT GOOGLE DID NOT
INFRINGE THE ASSERTED CLAIMS OF THE 104 PATENT.......................................2
6
...........................................................2
A.
7
Dalvik bytecode instructions only contain indexes, which are not
“symbolic references” because they refer to numeric memory locations. ...............2
8
1.
Field indexes are not symbolic references. ..................................................3
9
2.
The Court’s claim construction applies to data in the constant pool
tables as well as the actual field data in an instance object. ........................5
3.
Indexes are not symbolic references because they are not resolved. ...........8
10
11
12
B.
Dexopt does not infringe the ’104 patent. ................................................................9
13
C.
The Court should reject Oracle’s post-trial attempt to re-construe the term
“symbolic reference.” ............................................................................................10
14
III.
15
A REASONABLE JURY COULD ONLY FIND THAT GOOGLE DOES NOT
INFRINGE THE ASSERTED CLAIMS OF THE ’520 PATENT. ..................................11
16
A.
The jury is entitled to credit Professor Parr’s testimony explaining why
pattern matching differs from simulating execution ..............................................12
17
B.
Simulating execution, properly understood, involves the simulation of
actual Java virtual machine operations. .................................................................13
18
19
IV.
ORACLE’S PATENT INFRINGEMENT CLAIMS ARE BARRED BY
GOOGLE’S EQUITABLE DEFENSES. ..........................................................................14
20
A.
Oracle’s “additional facts” are contradicted by the evidence ................................15
21
B.
Oracle’s patent infringement claims are barred by equitable estoppel. .................16
22
C.
Oracle’s patent infringement claims are barred by laches. ....................................16
23
D.
Oracle’s patent infringement claims are barred by waiver. ...................................17
24
E.
Oracle’s patent infringement claims are barred by implied license .......................18
25
V.
GOOGLE CHOSE NOT TO PRESENT ITS DEFENSES OF PATENT MISUSE,
USE BY THE UNITED STATES, UNCLEAN HANDS, AND EXPRESS
LICENSE, AND THEREFORE DOES NOT OPPOSE ORACLE’S MOTION ON
THESE DEFENSES. .........................................................................................................18
VI.
CONCLUSION ..................................................................................................................19
26
27
28
i
GOOGLE’S OPPOSITION TO ORACLE’S RULE 50(A) MOTION FOR PHASE II
Case No. 3:10-CV-03561 WHA
666096.01
1
TABLE OF AUTHORITIES
2
Federal Cases
3
4
A.C. Aukerman Co. v. R.L. Chaides Const. Co.
960 F.2d 1020 (Fed. Cir. 1992).......................................................................................... 15, 16
5
De Forest Radio Tel. Co. v. United States
273 U.S. 236 (1927) ................................................................................................................. 17
6
7
Eon-Net LP v. Flagstar Bancorp
653 F.3d 1314 (Fed. Cir. 2011)................................................................................................ 13
8
In re Katz Interactive Call Processing Patent Litigation
712 F. Supp. 2d 1080 (C.D. Cal. 2010) ................................................................................... 16
9
10
Lucent Technologies, Inc. v. Gateway, Inc.
580 F. Supp. 2d 1016 (S.D. Cal. 2008) aff'd in part, vacated in part, remanded,
580 F.3d 1301 (Fed. Cir. 2009)................................................................................................ 16
11
12
McCoy v. Mitsuboshi Cutlery, Inc.
67 F.3d 917 (Fed. Cir. 1995).................................................................................................... 18
13
Wang Laboratories, Inc. v. Mitsubishi Electronics Am., Inc.
103 F.3d 1571 (Fed. Cir. 1997)................................................................................................ 17
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
ii
GOOGLE’S OPPOSITION TO ORACLE’S RULE 50(A) MOTION FOR PHASE II
Case No. 3:10-CV-03561 WHA
666096.01
1
2
I.
Introduction
The Court should deny Oracle’s motion for judgment as a matter of law. Under the
3
Court’s claim construction, no reasonable jury could find that Android infringes Claims 11, 27,
4
29, 39, 40, and 41 of U.S. Patent No. RE38,104 (the ’104 patent). The construction of “symbolic
5
references” does not, as Oracle suggests, limit the term “data” to “the actual field data in an
6
instance object.” Moreover, the terms “dynamically” and “statically” do not take on the tortured
7
meanings Oracle now ascribes to them in yet another attempt to modify the Court’s claim
8
construction.
9
Likewise, Oracle’s request for judgment as a matter of law that Google infringes the ’520
10
patent is based on no more than the view of Oracle’s counsel as to its desired claim construction
11
for the term “simulating execution.” Yet neither Oracle’s own expert, nor even Oracle itself in its
12
brief, focuses on the actual claim language at issue. Oracle is also incorrect that the disputed
13
claim language necessarily encompasses pattern matching. As Google explained at trial, a pattern
14
matcher will produce outcomes different than what results from simulating execution, and
15
Google’s dx tool proves the point, as it does not return identical results when it is applied to
16
bytecode that would be indistinguishable for purposes of simulating execution. As explained in
17
Google’s own motion for judgment as a matter of law, Oracle’s current theory is in essence a
18
belated doctrine of equivalents argument. It should be rejected.
19
Oracle’s motion as to Google’s equitable defenses also fails. The evidence at trial
20
established that Sun publicly and privately applauded Android for years. From the time of Mr.
21
Schwartz’s blog post in 2007 through Mr. Ellison’s efforts to form an Oracle-Google partnership
22
in 2010, Sun (and later Oracle) never once raised the issue of alleged patent infringement. The
23
fact that, during that time, Sun still desired to work with Google and hoped to convince Google to
24
buy a TCK license does not undermine Google’s equitable defenses because the parties never
25
discussed any patents, let alone a license for the patents-in-suit. To the contrary, Sun actively
26
encouraged Google and even built products to run on Android. During this time, Google invested
27
money, time, and resources in developing Android and bringing a smart phone to market. This
28
undisputed evidence is more than sufficient to grant judgment in Google’s favor on its affirmative
1
GOOGLE’S OPPOSITION TO ORACLE’S RULE 50(A) MOTION FOR PHASE II
Case No. 3:10-CV-03561 WHA
666096.01
1
defenses of equitable estoppel, laches, waiver, and implied license.
2
For all of these reasons, Oracle’s motion should be denied.
3
4
II.
A reasonable jury could only find that Google did not infringe the asserted claims of
the 104 patent.
5
6
7
8
9
10
11
TX 2564 at 5/852 (“The Java Language Specification”).
12
A.
Dalvik bytecode instructions only contain indexes, which are not “symbolic
references” because they refer to numeric memory locations.
13
14
Oracle’s theory has morphed yet again. In his opening report, Dr. Mitchell called the
15
indexes in the Dalvik bytecode instructions “numeric references,” acknowledging the undisputed
16
fact that they identify locations in constant pool tables. Then, in his trial testimony, Dr. Mitchell
17
called the indexes symbolic references, claiming that those indexes are names. Now, in its
18
motion, Oracle argues that indexes qualify as both numeric and symbolic references. This
19
schizophrenic theory permeates its motion for judgment as a matter of law:
20
•
“A field index—also called field@CCCC generally or ‘01’ in specific examples of
field indices in the trial testimony—is a reference to data to be obtained in
accordance with a corresponding numerical reference, and identifies that data by a
name other than the numeric memory location of the data.” [Oracle Mot. for
JMOL at 2.]
•
“For the field index in the IGET instruction to be a symbolic reference, it is
enough that it identifies—‘specifies,’ in Mr. McFadden’s words—some data to be
obtained, by something other than the data’s location.” (Id. at 3.)
•
“That indexes such as the ‘01’ in ‘52 01’ (the bytecode for IGET field@0001) may
also indicate the location of information in the dex file’s constant pool is not
relevant. The claims do not require that a reference exclusively identify data
symbolically to qualify as a symbolic reference.” ( Id. at 4.)
•
“Thus, even if a field index were a numeric memory location in the Field ID table,
it would still nevertheless be a symbolic reference, because it also identifies the
21
22
23
24
25
26
27
28
2
GOOGLE’S OPPOSITION TO ORACLE’S RULE 50(A) MOTION FOR PHASE II
Case No. 3:10-CV-03561 WHA
666096.01
1
value of a field in an instance object—the only data that is relevant to the claims—
by a name other than its location.” ( Id. at 6.)
2
3
As discussed below, not only should these new—and illogical—theories be rejected as a matter of
4
law, they highlight the fact that the indexes in Dalvik bytecode instructions are indeed numeric
5
rather than symbolic references. Accordingly, judgment as a matter of law should be entered in
6
favor of Google, not Oracle.
7
1.
Field indexes are not symbolic references.
8
There is no dispute that Dalvik bytecode instructions—the instructions evaluated by both
9
Resolve.c and the dexopt tool—consist of an opcode and operand. [TX 737 (“Each instruction
10
starts with the named opcode and is optionally followed by one or more arguments.”); RT
11
3221:8-10, 3234:4-7 (McFadden); RT 3590:23-3591:25 (Bornstein); RT 3844:14-3855:12,
12
3925:4-18 (August).] Nor is there any dispute that the accused operands are indexes that take the
13
form “field@CCCC” and reference locations in tables. [See Oracle Mot. for JMOL at 2-3; TX
14
46.106; TX 735 (“There are separately enumerated and indexed constant pools for references to
15
strings, types, fields, and methods.”); TX 737; RT 3732:15-19, 3736:16-23, 3755:8-9, 3765:9-12
16
(McFadden); 3858:5-12, 3858:21-359:11, 3918:13-23, 3923:20-24, 3925:19-3926-9 (August).]
17
Even Dr. Mitchell agrees. [RT 3488:6-8, 3488:19-23, 3489:10-12 (Dr. Mitchell) (the “classIdx”
18
index in Dalvik instructions provides information “to a location in another table”); RT 3496:12-
19
3497:6 (the “field Idx” in Dalvik instructions is “an index to a specific location in the field
20
table”).] These indexes refer to locations in the constant pool tables, which are data in the .dex
21
file; for example, “field@0001” refers to the entry 1 in the Field IDs table. [See Oracle Mot. for
22
JMOL at 4.]
23
Oracle focuses its analysis on the IGET instruction in Dalvik bytecode. [See id. at 3.] It
24
argues that the IGET instruction corresponds to the “LOAD ‘y’” instruction in Figure 1B of the
25
’104 patent. [Id.] That is the wrong example. As Oracle notes, “[t]he IGET instruction contains
26
three operands—vA, vB, and field@CCCC—where the third operand field@CCCC is the field
27
index.” [Id. at 3 (citing TX 735 at 6; RT 3221:8-10 (McFadden)).] That index identifies an entry
28
3
GOOGLE’S OPPOSITION TO ORACLE’S RULE 50(A) MOTION FOR PHASE II
Case No. 3:10-CV-03561 WHA
666096.01
1
in the Field ID table. As such, the IGET instruction in the Dalvik bytecode instructions actually
2
corresponds to the “LOAD 2” instruction depicted in Figure 1A the ’104 patent.
3
4
5
6
7
8
9
10
11
12
13
The instruction, LOAD 2, directs the computer to go to Slot 2 in the table, much like the IGET
14
instruction 52 01 instructs the computer to go to entry 01 in the Field ID table. Even Oracle
15
concedes this is how the IGET instruction works. [Id. at 4.] As such, the operands for IGET
16
instructions in Dalvik bytecode—the indexes—qualify as numeric references rather than
17
symbolic references. Because those indexes refer to data by a numeric memory location—entry
18
01 in the Field IDs table—they do not meet the Court’s construction of “symbolic references.”
19
In light of all the evidence presented at trial, Oracle now concedes that indexes in the
20
instruction stream indicate the location of information in the constant pool tables, making them
21
numeric references in at least that respect. “That indexes such as the ‘01’ in ‘52 01’ (the bytecode
22
for IGET field@0001) may also indicate the location of information in the dex file’s constant
23
pool is not relevant.” [See Oracle Mot. for JMOL at 4 (emphases removed).] Oracle’s new
24
argument that this is not relevant, however, is insincere—indeed, the whole issue is whether the
25
indexes qualify as symbolic or numeric references. Oracle continues, “[t]he claims do not require
26
that a reference exclusively identify data symbolically to qualify as a symbolic reference.” [Id.]
27
Along those same lines, Oracle argues that “even if a field index were a numeric memory location
28
in the Field ID table, it would still nevertheless be a symbolic reference, because it also identifies
4
GOOGLE’S OPPOSITION TO ORACLE’S RULE 50(A) MOTION FOR PHASE II
Case No. 3:10-CV-03561 WHA
666096.01
1
the value of a field in an instance object—the only data that is relevant to the claims—by a name
2
other than its location.” [Id. at 6 (emphasis in original).] This is the first time that Oracle has
3
posited the idea of “hybrid” numeric-symbolic references, which conflicts with the patent and the
4
Court’s Claim Construction Order. [See Dkt. No. 137 at 20 (“The ’104 patent teaches two
5
different types of data references: numeric references and symbolic references.”); see also TX
6
4015.] And, tellingly, neither Dr. Mitchell nor any other witness testified that indexes could
7
simultaneously qualify as both numeric and symbolic references. In fact, Oracle cites nothing
8
from the record evidence in support of those new-found “dual-status” references. They are
9
simply an after-the-fact argument developed by Oracle’s counsel to try to salvage its case.
10
2.
11
12
The Court’s claim construction applies to data in the constant pool
tables as well as the actual field data in an instance object.
Oracle’s tortured re-interpretation of the Court’s claim construction provides no basis for
13
judgment as a matter of law. As is clear on its face, the Court’s construction distinguishes
14
between using names to represent data (i.e., symbolic references) and using numeric memory
15
locations:
16
17
a reference that identifies data by a name other than the numeric memory location
of the data, and that is resolved dynamically rather than statically
18
[Dkt. No. 137 at 22.] Dr. Mitchell agrees. [RT 3480:12-15.] There is no limitation regarding the
19
type of data being referenced.
20
Regardless, Oracle postulates that “the ‘data’ in the Court’s construction of symbolic
21
reference is the actual field data ‘obtained’ by Dalvik—the value of a field in an ‘instance
22
object’—rather than the constant pool information in the Android dex file that is the focus of
23
Google’s arguments.”
24
omitted); see also RT 4019:3-7 (Mitchell).] This reading is much more restrictive than what the
25
ordinary meaning of the word “data” implies. According to Dr. Mitchell, the “data” must be the
26
actual field data in the instance object, as opposed to any data in the .dex file, including the data
27
in the constant pool tables. [RT 4025:6-21 (Mitchell) (“So in order for that to happen, we have to
28
find where that actual data is in the object using this symbolic reference. . . .”).] As explained in
[Oracle Mot. for JMOL at 5 (parenthetical with claim construction
5
GOOGLE’S OPPOSITION TO ORACLE’S RULE 50(A) MOTION FOR PHASE II
Case No. 3:10-CV-03561 WHA
666096.01
1
Google’s motion for judgment as a matter of law, to turn an index—which is a numeric reference
2
to a location in a table—into a symbolic reference, Dr. Mitchell must resort to improperly re-
3
defining “symbolic reference” to mean “a reference that identifies the actual field data in the
4
instance object by a name other than the numeric memory location of the actual field data in the
5
instance object.” [Google Mot. for JMOL at 3 (emphases indicating Dr. Mitchell’s apparent
6
changes to Court’s construction).]
7
construction, which simply distinguishes between a reference to data—any data—by a name
8
rather than location. [See Claim Construction Order (Dkt. No. 137) at 20-22; RT 3480:12-15
9
(Mitchell).]
This does not conform to the Court’s ruling on claim
10
Oracle misplaces much emphasis on the fact that the figures in the ’104 patent show that
11
the symbolic reference refers to data that is “obtained.” [Oracle Mot. for JMOL at 5.] It further
12
emphasizes that the experts agree that the purpose of the LOAD instruction described in the
13
patent is to obtain the value from the data object. [Id.] But there are two problems with these
14
arguments. First, the fact that an instruction loads a particular piece of data does not mean that
15
the intervening data structures—in the case of Android, the constant pool tables—do not also
16
qualify as data. It’s all data, as explained by Dr. August on cross-examination. [3955:22-24 (“Q.
17
Now, just to clean up a few other things. You labeled this ‘data,’ but this is actually the constant
18
pool; true, sir? A. Constant pool is data.”).] The simple figures of the ’104 patent, which contain
19
only instructions and the ultimate data object, do not prove otherwise. Put another way, the fact
20
that Figures 1A, 1B, and 8 in the ’104 patent reflect entries in a “Data Object” does not mean that
21
other data cannot also meet the construction of “symbolic references.” Indeed, if this is the only
22
“data” that the claim construction refers to, then every other reference in the system must be
23
deemed “symbolic.”
24
identifying a single piece of data as “the data” for purposes of the claim construction, Oracle’s
25
interpretation means that every other piece of data is a symbolic reference. This is simply not
26
consistent with the patent or the Claim Construction Order. [See TX 4015; Dkt. No. 137 at 20-
27
22.]
Then Oracle’s interpretation becomes a self-fulfilling prophecy:
28
6
GOOGLE’S OPPOSITION TO ORACLE’S RULE 50(A) MOTION FOR PHASE II
Case No. 3:10-CV-03561 WHA
666096.01
by
1
2
Second, as Dr. August explained in his testimony, the actual field data in the instance
object may itself be a reference to other data; for example, another string in the string data table.
3
Q. What can be in this instance object by way of data?
4
A. Well, it could be a symbolic reference. It could be a numeric
reference. Or it could be other non-reference data.
5
6
7
8
9
10
11
***
Q. Let’s talk about in Dalvik. Is the data at these entries always
non-reference data, as we talked about in your technical
tutorial?
A. No, it's not.
Q. How do you know that?
A. Because I write programs. And you can write programs that
contain references in instances of objects.
12
[RT 4002:14-16; 4003:11-17.] Thus Oracle’s characterization of the value of the actual field data
13
in the instance object as some form of “ultimate” or “meaningful” data in Android is a false
14
premise, unsupported by any evidence.
15
By claiming that data in the constant pool tables does not count, and that only the value of
16
the actual field data in an instance object qualifies as the data, Oracle’s motion turns the claim
17
construction on its head. [Oracle Mot. for JMOL at 6 (“The Field ID table and the other parts of
18
the dex file constant pool information are not ‘data’ within the meaning of the claims.”).] As
19
discussed above, Oracle’s new argument would mean that all references in the instruction stream
20
qualify as symbolic references, because, despite the fact that those references are indexes that
21
point to the location of data (in constant pool tables), they ultimately lead to the loading of other
22
data once the symbolic reference—the name in the string table—is determined and thereafter
23
resolved. This is an illogical reading of the ’104 patent, which clearly provides for an instruction
24
stream that contains both symbolic and numeric references as separate and distinct elements.
25
[See, e.g., TX 4015 at Claim 11.]
26
27
28
7
GOOGLE’S OPPOSITION TO ORACLE’S RULE 50(A) MOTION FOR PHASE II
Case No. 3:10-CV-03561 WHA
666096.01
1
2
3.
Indexes are not symbolic references because they are not resolved.
Oracle contends that field indices are resolved to pointers; therefore, they must be
3
symbolic references. [Oracle Mot. for JMOL at 7.] Oracle has it backwards. Field indices are
4
not resolved. As Mr. McFadden explained in the context of discussing Resolve.c:
5
Q. And are indexes in this process being resolved?
6
A. No.
7
Q. Why do you say no?
8
A. Well, resolution implies something is unknown, something is
ambiguous. If you have an index, you know exactly where
you're going. You have the location.
For symbols, you don't know where you're going and you
won’t know until you have resolved the ambiguity. So it
doesn't really make sense to say that you “resolve an index.”
9
10
11
12
[RT 3650:18-3651:1.] The record confirms that indexes are numeric rather than symbolic
13
references.
14
Indexes in Dalvik bytecode instructions always point to the numeric memory location of
15
data, both before and after resolution of the symbolic references in the .dex file string data. In
16
Resolve.c, the instruction stream does not change; the index field@CCCC is used both before and
17
after resolution. It is simply used to look at entries in the Resolved Fields Table and the Field ID
18
table. [RT 3636:13-3637:20 (McFadden).] In dexopt, although the bytecode instruction operand
19
is rewritten, it is simply changed from one numeric reference to another numeric reference. [RT
20
3746:22-3747:14 (McFadden); 3933:5-3934:19 (August).] Specifically, the index value
21
“field@CCCC” is replaced with another numeric memory location—the offset
22
“fieldoff@CCCC.” [RT 3746:22-3747:14 (McFadden); 3933:5-3934:19 (August); TX 737 at 3;
23
TX 46.106 (showing instruction format kFmt22c uses the data at location “field@CCCC” and
24
instruction format kFmt 22cs uses the data at location “field offset CCCC”); see also TX 737 at 1
25
(“Suggested static linking formats have an additional ‘s’ suffix, . . . ”).] This is made clear in the
26
dexopt documentation, which notes that dexopt is simply replacing one location with another:
27
“For virtual method calls, replace the method index with a vtable index” and “For instance field
28
get/put, replace the field index with a byte offset.” [TX 739.] In sum, either the index in the
8
GOOGLE’S OPPOSITION TO ORACLE’S RULE 50(A) MOTION FOR PHASE II
Case No. 3:10-CV-03561 WHA
666096.01
1
instruction stream stays the same, as in the case of Resolve.c, or it gets rewritten by an index or
2
offset to another location.
3
True symbolic references—names in the string table—require real resolution. These types
4
of references do not tell the computer where to go next; they require a search, i.e., a “resolution.”
5
[RT 3646:1-23, 3766:18-3767:4 (McFadden); 3848:20-3849:17 (August).] In contrast, indexes
6
do not require any searching (or “resolving”) because they tell the computer exactly which
7
location in memory to access next.
8
9
10
11
12
13
14
THE COURT: The premise being that the certain of said instructions containing
one or more symbolic references.
And you’re saying that -- well, what is “01”? Is that, in your view, a symbolic
reference?
THE WITNESS: No. “01” is a numeric reference because it gives you an actual
numeric memory location. Right here (indicating). This is the location, 01.
There’s no resolution, no search. Nothing – nothing expensive about figuring out
what that instruction is referring to when it goes to the field ID table.
15
[RT 3865:11-20 (August).] This is precisely the distinction recognized in the Court’s Claim
16
Construction Order. [Dkt. No. 137 at 21 (noting that for symbolic references “[t]he claimed
17
invention would use a dynamic subroutine to interpret this symbolic reference—it would have to
18
figure out that ‘y’ means ‘17’ or that ‘y’ means ‘the data stored in memory slot 2,’ and then get
19
the data called y (col. 5:13–19).”).]
20
B.
21
Oracle’s request for judgment as a matter of law on infringement of claims 27 and 29
Dexopt does not infringe the ’104 patent.
22
should also be denied. Oracle’s claim that the Android dexopt tool resolves symbolic references
23
dynamically rather than statically rests on Dr. Mitchell’s erroneous opinion that an optimization
24
(e.g., resolution) based on information about a runtime environment is “dynamic.” But there is a
25
wealth of documentary evidence and fact and expert testimony testimony that proves dexopt is a
26
static optimization. [RT 3730:16-22 (McFadden); RT 3940:17-20 (August); RT 3595:21-24
27
(Bornstein); TX 32 at 35, TX 816 at 24:05; TX 735 (defining opcodes that “are reasonable
28
candidates for static linking”); TX 737 (defining “statically linked” instruction formats); TX 739
9
GOOGLE’S OPPOSITION TO ORACLE’S RULE 50(A) MOTION FOR PHASE II
Case No. 3:10-CV-03561 WHA
666096.01
1
(dexopt performs optimizations that “can be inferred statically”).] Meanwhile, Oracle’s reliance
2
on TX 1094 is specious. As is clear from the document, it was an incomplete cut-and-paste job
3
from TX 739 (also TX 105). And the copied reference to runtime information, as explained by
4
Andy McFadden, does not refer to optimization performed by dexopt. [See RT 3734:20-3735:7.]
5
Accordingly, no reasonable jury could conclude that dexopt infringes claims 27 and 29 of the
6
’104 patent.
7
8
9
C.
The Court should reject Oracle’s post-trial attempt to re-construe the term
“symbolic reference.”
Oracle seeks judgment as a matter of law on infringement of claims 27 and 29 of the ‘104
10
patent based on yet another request that the Court’s construction of “symbolic reference” be re-
11
construed. [Dkt. 1168 at 9-11 (Section III.C).] This latest attempt to change the meaning of a
12
claim construction that the parties have relied on for over a year and through the close of evidence
13
at trial represents Oracle’s third bite. [See Dkt. 132, 1128.] Google has previously explained
14
why this request should be rejected as both highly prejudicial and as waived by Oracle. [See Dkt.
15
1134 at 1-2 (incorporated by reference herein).] In addition, there is no basis to conclude, as
16
Oracle has, that the term “dynamic” is given a special meaning in the ’104 patent. Indeed, the
17
record at trial proves just the opposite.
18
For example, Oracle’s expert commended the Court’s construction of “symbolic
19
reference,” stating that “this is a great, clear statement from the Court about what symbolic
20
reference means.” [RT 3302:23-3303:1 (Mitchell) (emphasis added).] Dr. Mitchell also testified
21
that “dynamic” resolution, as used in the Court’s construction of symbolic reference, is resolution
22
that is done at runtime:
23
24
25
26
27
Q. So resolution from -- if there were a symbolic reference that was
resolved to a numeric reference, even if that were so, you would also
need to show that that was done dynamically; correct?
A. Yes.
Q. And you said that that means done at runtime essentially, right?
A. Yes, that’s one way that it can be done dynamically.
[RT 3502:25-3503:7.] In light of this clear testimony from Oracle’s own expert, Oracle cannot
28
10
GOOGLE’S OPPOSITION TO ORACLE’S RULE 50(A) MOTION FOR PHASE II
Case No. 3:10-CV-03561 WHA
666096.01
1
now be heard to complain that “dynamic,” as that term is used in the context of the Court’s
2
definition of “symbolic reference,” is ambiguous.
3
Further, Oracle’s request, while couched as seeking clarification of the meaning of the
4
term dynamic in the context of the ’104 patent, is nothing more than another attempt to eliminate
5
the “dynamic” nature of the symbolic resolution disclosed and claimed by the ’104 patent. Oracle
6
posits that the ’104 patents requirement of dynamic resolution is satisfied when symbolic
7
references are “resolved to identify the memory location of the underlying data based on memory
8
conditions that exist at whatever time the resolution occurs.” [Dkt. 1168 at 11 (emphasis added).]
9
By definition, symbolic references must be resolved; thus, Oracle’s definition of dynamic would
10
apply to every symbolic reference, because resolution must happen at some time.
11
The ’104 patent is clear, however, that the claimed symbolic references are resolved
12
during execution—i.e., at runtime. For example, the ‘104 patent discloses that the main
13
interpretation routine determines if the reference is symbolic, invokes the dynamic field reference
14
routine that resolves the symbolic reference, and then re-executes the instruction. [TX 4015 at
15
5:10-23.] This passage clearly defines the dynamic nature of the ’104 patent’s symbolic
16
resolution. It is performed by the interpretation routine—i.e., while interpreting the instruction
17
containing a symbolic reference. After this runtime resolution occurs, the resolved instruction is
18
re-executed. Indeed, the fact that the patent describes the second pass as “reexecution” confirms
19
that the symbolic reference resolution occurs during execution.
20
Given the testimony of Oracle’s own expert and the clear import of the ’104 patent
21
disclosure as captured in the Court’s construction of “symbolic reference,” Oracle has provided
22
no basis for its belated request to redo the claim construction. More importantly, applying the
23
current construction, no reasonable jury could find that claims 27 and 29 are infringed by dexopt.
24
III.
25
A reasonable jury could only find that Google does not infringe the asserted claims
of the ’520 patent.
26
Oracle asks for judgment as a matter of law of infringement based on its argument that
27
“simulating execution” does not require any actual operations on a Java virtual machine to be
28
simulated, and that the term also encompasses the distinct method (which results in different
11
GOOGLE’S OPPOSITION TO ORACLE’S RULE 50(A) MOTION FOR PHASE II
Case No. 3:10-CV-03561 WHA
666096.01
1
outcomes in certain circumstances) of pattern matching. Neither of these contentions are
2
supportable, and Oracle’s arguments should be rejected.
3
4
5
A.
The jury is entitled to credit Professor Parr’s testimony explaining why
pattern matching differs from simulating execution
To reach his opinion on non-infringement, Professor Parr not only looked at the source
6
code, but also performed multiple experiments to confirm his understanding. His second
7
experiment showed beyond any doubt that the dx tool is not simulating execution as required by
8
the ’520 patent. He inserted an extra piece of bytecode that put a zero into the zeroth entry in an
9
array—where a zero already existed at the inception of the array. Such an extraneous piece of
10
code, when run through a program that simulated execution of byte code instructions, would
11
create an efficient instruction with no problem. [RT 3810:4-13 (Parr).] However, the dx tool
12
failed to create a proper static array initialization instruction when it was fed that code. [RT
13
3809:20-3810:3 (Parr).] As Professor Parr explained, the code was set up to “punt” when it did
14
not find the pattern it sought. [RT3801:7-18 (Parr)]. Hence, Professor Parr concluded that the dx
15
tool code could not be simulating execution of the byte code. Dr. Mitchell’s so-called
16
“experiment,” referenced in Oracle’s JMOL brief at 14:23-15:2, in no way contradicts or even
17
addresses Professor Parr’s findings. Dr. Mitchell’s work consisted of running the dx tool on a
18
standard Java byte code pattern and confirming that it created a single instruction to initialize a
19
static array. [RT 3345:8-3346:1 (Mitchell).] But the fact that the byte code started in one form
20
and ended in another does not tell how it got there; and Dr. Mitchell admitted that, for a method
21
claim, it is not enough simply to show that “with the same input you’d get the same output from a
22
piece of code.” [RT 4054:24-4055:4 (Mitchell).] Accordingly, Dr. Mitchell’s experiment is
23
insufficient to show that pattern matching infringes the ’520 patent.
24
Oracle’s contention that simulated execution includes the far different process of pattern
25
matching because the claims “do not exclude pattern matching” is incorrect. The burden is on
26
Oracle to show infringement of the claims as properly construed—not on Google to prove that the
27
claims do not cover what the dx tool does. Oracle never requested construction of “simulating
28
execution” in the ’520 patent; its position was that the phrase takes its plain meaning. Yet
12
GOOGLE’S OPPOSITION TO ORACLE’S RULE 50(A) MOTION FOR PHASE II
Case No. 3:10-CV-03561 WHA
666096.01
1
nothing in the plain meaning of that phrase shows that pattern matching is covered. Indeed, it is
2
undisputed that the ’520 patent makes no mention of pattern matching. [RT 3521:10-12
3
(Mitchell); TX 4011.] Oracle continues to highlight the source code comments from the class
4
simulator.java in an attempt to prove its case. But both experts agree that the code that identifies
5
the static initialization of arrays is not found in that class; it is in the separate BytecodeArray
6
class. [RT 3799:14-3800:7 (Parr); 3519:19-3520:3 (Mitchell); 4061:9-4062:3 (Mitchell).] And
7
BytecodeArray, in which Oracle concedes both the parseInstruction and parseNewarray methods
8
are found, Mot. at 14:17-19, is the class that identifies static initialization through pattern
9
matching rather than through simulated execution. [RT 3799:14-3801:18 (Parr).] Oracle cannot
10
show that, as a matter of law, pattern matching must be encompassed within “simulating
11
execution.” At most, this is a doctrine of equivalents argument that Oracle never made, and
12
Google (not Oracle) is entitled to judgment on it. [See Brief in Support of Google’s Motion for
13
Judgment as a Matter of Law on Counts V and VII of Oracle’s Amended Complaint (ECF No.
14
1166) at 8:21-9:25.]
15
16
17
B.
Simulating execution, properly understood, involves the simulation of actual
Java virtual machine operations.
At trial, Professor Parr, who has been programming in Java for nearly two decades now,
18
explained that “there is no meaningful definition of simulating execution of a stack machine
19
without manipulation of a stack. That means pushing, popping, things like that.” [RT 3794:17-
20
19 (Parr).] Oracle’s own expert, Dr. Mitchell, did not disagree—far from it. He agreed that “in a
21
Java bytecode system, instructions operate by pushing and popping and replacing values from the
22
top of an operand stack.” [RT 4058:3-6 (Mitchell).] Google is not attempting to read language
23
from the specification into the claims—it is explaining how the claim language would be
24
understood by those of skill in the art in light of the specification, which is to require simulating
25
execution of the actions set forth in the byte code instructions in order to obtain the initial values
26
of the static array. [TX 4011 at Fig. 3, 5:52-54.]
27
28
In contrast to Professor Parr’s thoughtful explanation of what the relevant claim language
would mean to one of ordinary skill in the art, Dr. Mitchell seldom used the actual language of
13
GOOGLE’S OPPOSITION TO ORACLE’S RULE 50(A) MOTION FOR PHASE II
Case No. 3:10-CV-03561 WHA
666096.01
1
“simulating execution” in his testimony, eschewing that phrase for the use of the more general
2
word “simulation.” [See, e.g., RT 4032 (“is properly called simulation or not”; “dx tool simulates
3
bytecode”; “pattern matching as a portion of simulation”; “the process is properly called
4
simulation”) (Mitchell).] Indeed, Oracle’s counsel repeatedly uses other words in its JMOL
5
motion to describe what the dx tool does. [Oracle Mot. for JMOL at 12:11-12 (“the dx tool
6
examines the bytecodes”); id. at 14:20 (“bytecode instructions are examined without being
7
executed”); id. at 15:5-7 (dx tool “examining” the byte codes) (emphases added).] Yet the claim
8
language of the ’520 patent is clear that what is required is not “simulating” or “examining,” but
9
rather “simulating execution.” TX 4011 at 9:54-57, 12:7-8. Given that Oracle itself repeatedly
10
describes what the dx tool does in terms other than simulating execution, a reasonable jury plainly
11
could find that the claim language is not satisfied by the dx tool.
12
IV.
13
1
Oracle’s patent infringement claims are barred by Google’s equitable defenses.
For the reasons stated in Google’s Proposed Findings of Fact and Conclusions of Law
14
submitted after Phase I (Dkt. 1047), Google, not Oracle, is entitled to judgment on its equitable
15
defenses. Just as it did in post-trial briefing following Phase I, Oracle’s Motion simply recites its
16
own gloss on disputed evidence and utterly fails to address the evidence favoring Google. Oracle
17
also argues that “additional facts” elicited in Phase II support its made-for-litigation story that
18
both Sun and Google always believed that Google needed a license for Android—a license that
19
Oracle now opportunistically claims in this phase was a primarily about patents, not copyrights.
20
1
21
22
23
24
25
26
27
28
2
Oracle also trots out a claim differentiation argument that was neither found in Dr. Mitchell’s
expert report, nor testified to by any witness at trial. It is therefore inappropriate to make the
argument on this record and at this point in the case. However, had Oracle attempted to make the
argument at trial, there is an simple response: Unasserted claim 3 of the ’520 patent requires that
three separate steps (allocating a stack, reading a bytecode that manipulates the stack, and
performing stack manipulation on the stack) be included within the third step (the play executing
step) of claim 1. A method that allocated a stack as part of the second step of claim 1 (“receiving
the class into a preloader”) would not infringe claim 3, as it would not have the stack allocation
step as part of the play executing step, but it would still infringe claim 1. Thus, even if claim
differentiation were an iron-clad rule (and it is not, see Eon-Net LP v. Flagstar Bancorp, 653 F.3d
1314, 1323 (Fed. Cir. 2011)), claim differentiation does not mean that claim 1 does not include
stack manipulation.
2
The jury already has found that Google proved that “Sun and/or Oracle engaged in conduct Sun
and/or Oracle knew or should have known would reasonably lead Google to believe that it would
not need a license to use the structure, sequence, and organization of the copyrighted compilable
code.” Dkt. 1089 (Answer to Special Interrogatory 4A).
14
GOOGLE’S OPPOSITION TO ORACLE’S RULE 50(A) MOTION FOR PHASE II
Case No. 3:10-CV-03561 WHA
666096.01
1
[Oracle Mot. for JMOL at 16.] Oracle is wrong. Indeed, in most instances, Oracle’s gloss on the
2
evidence is expressly contradicted by other evidence in the record—evidence it pretends doesn’t
3
exist. Oracle’s motion should be denied.
4
A.
5
In Phase I, the evidence established that (1) Sun was well aware of Google’s plans for
Oracle’s “additional facts” are contradicted by the evidence
6
Android at least as early as April 2006, (2) Sun publicly encouraged Android after it was
7
announced and the SDK was released in November 2007, (3) Sun never once told Google that
8
Android infringed Sun’s copyrights or patents, and (4) Google relied on Sun’s active
9
encouragement and failure to assert its rights by investing time, money, and resources into
10
Android. [See GFOF 37-92.] This evidence is equally relevant to Phase II, but Oracle ignores it.
11
Instead, Oracle tries to make hay out of “additional facts” elicited in Phase II. Oracle’s “facts”
12
are not facts at all; they are attorney argument, and they are contradicted by the evidence.
13
For example, Oracle states “[o]ne of Google’s primary goals in these negotiations was to
14
obtain a license to Sun’s patents.” [Oracle Mot. for JMOL at 16:25-26 (citing TX 2714, TX 22,
15
and TX 618).] But Andy Rubin, the head of the Android project at Google, testified that the
16
documents Oracle cites in support of this “fact” addressed Google’s desire to develop an open
17
source license with patent protection for downstream licensees, not a desire to license specific
18
patents from Sun. [See, e.g., RT 3190:25-3192:21.] Vineet Gupta, Sun’s lead negotiator during
19
the Sun-Google partnership discussions, confirmed that Sun and Google did not specifically
20
negotiate for a patent license, and that he never presented any Java-related patents to Google
21
during the negotiations. [RT 3771:21-24; TX 3542.] Nothing in the Phase II (or Phase I)
22
evidence supports Oracle’s position that Sun and Google were negotiating for a license to specific
23
Java-related patents.
24
Oracle also states as an “additional fact” that Tim Lindholm “was aware of the ‘104 patent
25
in particular.” [Oracle Mot. for JMOL at 17.] This is plainly incorrect. Mr. Lindholm testified
26
that he had never even read the ‘685 patent, let alone the ‘104 patent, which has entirely different
27
28
15
GOOGLE’S OPPOSITION TO ORACLE’S RULE 50(A) MOTION FOR PHASE II
Case No. 3:10-CV-03561 WHA
666096.01
3
1
claims than the ’685 patent. [RT 3023:9-13; TX 4015. ] Nor is there any evidence that any
2
member of the Android team had ever seen either of the two patents-in-suit. Oracle’s vague
3
assertions about Google’s awareness of unidentified “Sun patents,” Mot. at 17, is irrelevant to
4
Google’s equitable defenses.
5
In short, none of the “additional facts” cited by Oracle in its Motion overcome the
6
overwhelming evidence in support of Google’s equitable defenses. [See GFOF at 37-92.]
7
B.
8
For the reasons explained in Google’s Proposed Findings of Fact and Conclusions of Law,
Oracle’s patent infringement claims are barred by equitable estoppel.
9
and its Response to Oracle’s proposed findings and conclusions, Google has proven each of the
10
elements of its equitable estoppel defense. [Dkt. 1047 at GCOL 32-33, 1079 at 59-62; see also
11
A.C. Aukerman Co. v. R.L. Chaides Const. Co., 960 F.2d 1020, 1042 (Fed. Cir. 1992) (listing
12
elements).] Rather than address these facts, Oracle’s motion makes much of the fact that Sun
13
and Google discussed Android-related opportunities after Google launched Android. [Oracle
14
Mot. for JMOL at 20-21.] Not even Oracle’s own gloss on those discussions supports its motion
15
here.
16
That Sun attempted to convince Google to buy a TCK license and make Android Java-
17
compatible, Mot. at 20-21, is irrelevant to Google’s estoppel defense. What is relevant is that Sun
18
never informed Google that it was violating either the ’104 or ’520 patent, until July 20, 2010,
19
less than three weeks before the lawsuit was filed. [RT 3181:25-3182:10 (Rubin); see also TX
20
1074.] Indeed, Sun and Google never even discussed a license to any specific patents, let alone
21
the patents-in-suit. [RT 3190:25-3192:21 (Rubin); RT 3181:25-3182:10 (Gupta).] Discussions
22
about a potential license unrelated to the patents-in-suit are simply irrelevant to Google’s
23
affirmative defense of equitable estoppels. [See Dkt. 1047 at GCOL 32-34.]
24
C.
25
For the reasons stated in Google’s Proposed Findings of Fact and Conclusions of Law,
Oracle’s patent infringement claims are barred by laches.
26
and its Response to Oracle’s proposed findings and conclusions, Google has proven each element
27
3
28
In any event, Mr. Lindholm was not involved at any point with the design or development of the
Dalvik virtual machine specifically or even Android generally. [RT 3033:22-3035:1.]
16
GOOGLE’S OPPOSITION TO ORACLE’S RULE 50(A) MOTION FOR PHASE II
Case No. 3:10-CV-03561 WHA
666096.01
1
of laches. [Dkt. 1047 at 31-32, 1079 at 64-66; see also Aukerman, 960 F.2d at 1032.]
2
That Sun occasionally tried to convince Google to buy a license for Android—but did not
3
identify or even allude to the patents-in-suit—does not excuse Oracle’s delay in filing suit. Each
4
of the cases Oracle cites for the proposition that negotiations are an excuse for unreasonable delay
5
involve negotiations focused on the specific patents at issue. See Lucent Techs., Inc. v. Gateway,
6
Inc., 580 F. Supp. 2d 1016, 1053 (S.D. Cal. 2008) aff'd in part, vacated in part on other grounds,
7
remanded, 580 F.3d 1301 (Fed. Cir. 2009) (“The evidence showed that for several years leading
8
up to the start of the litigation underlying this case, beginning around 1998 through 2002 and
9
2003, Lucent engaged in efforts to sell a license for the ’226 to computer manufacturers Gateway
10
and Dell.”); In re Katz Interactive Call Processing Patent Litig., 712 F. Supp. 2d 1080, 1110
11
(C.D. Cal. 2010) (patentee contacted alleged infringer “regarding its patent portfolio,” patentee
12
“asked for additional information regarding any potential infringement,” and alleged infringer
13
considered taking a license for the specific patent portfolio). In this case, however, the record is
14
clear that Sun and Google never negotiated over the patents-in-suit, or any specific patents for
15
that matter. [RT 3190:25-3192:21 (Rubin); RT 3181:25-3182:10 (Gupta).]
16
Oracle also ignores Mr. Rubin’s testimony that, during the time of Sun’s and Oracle’s
17
delay in filing suit, Google invested in Android by hiring engineers, creating Google applications
18
for Android, and spending time and money to help Google and its partners bring phones to
19
market. [RT 1715:2-1717:25; Dkt. 1047 at GFOF 82-86.] Oracle cites no case suggesting that
20
the “prejudice” requirement for laches cannot be met where the defendant invests time, money,
21
and resources in a still-developing product in reliance upon the plaintiff’s delay and at a time
22
when the defendant could have changed course had the plaintiff filed suit earlier.
23
D.
24
For the reasons stated in Google’s Proposed Findings of Fact and Conclusions of Law,
Oracle’s patent infringement claims are barred by waiver.
25
and its Response to Oracle’s proposed findings and conclusions, Google has proven that Sun
26
waived its rights to enforce the ’104 and ’520 patents. [Dkt. 1047 at GCOL 35, 1079 at 56-
27
58.] For the reasons explained above, Oracle’s desire to sell Google a license does not contradict
28
the evidence establishing that Oracle waived its right to pursue legal action against Google.
17
GOOGLE’S OPPOSITION TO ORACLE’S RULE 50(A) MOTION FOR PHASE II
Case No. 3:10-CV-03561 WHA
666096.01
1
E.
Oracle’s patent infringement claims are barred by implied license
2
For the reasons stated in Google’s Proposed Findings of Fact and Conclusions of Law,
3
and its Response to Oracle’s proposed findings and conclusions, Google has proven that the entire
4
course of conduct between Sun and Google over the relevant time period created an implied
5
license for Google to use the ’104 and ’520 patents in Android. [Dkt. 1047 at GCOL 34-35, 1079
6
at 62-63.] Oracle’s attempt to limit the doctrine of implied license to a specific factual situation
7
unlike the situation here is unavailing.
Oracle cites two cases that address a specific situation in which an implied license can
8
9
arise. [Oracle Mot. for JMOL at 23-24 (citing Zenith Elecs. Corp. v. PDI Comm’n Sys., Inc., 522
10
F.3d 1348, 1360 (Fed. Cir. 2008); Jacobs v. Nintendo of Am, Inc., 370 F.3d 1097, 1100 (Fed. Cir.
11
2004)).] But these cases are not the only situations where an implied license can arise. Indeed,
12
the Federal Circuit, relying on De Forest Radio Tel. Co. v. United States, 273 U.S. 236 (1927),
13
has recognized there are “different categories of conduct” which can give rise to implied license:
14
Since De Forest, this court and others have attempted to identify and isolate
various avenues to an implied license. As a result, courts and commentators relate
that implied licenses arise by acquiescence, by conduct, by equitable estoppel
(estoppel in pais), or by legal estoppel. These labels describe not different kinds of
licenses, but rather different categories of conduct which lead to the same
conclusion: an implied license.
15
16
17
18
Wang Labs., Inc. v. Mitsubishi Elecs. Am., Inc., 103 F.3d 1571, 1580 (Fed. Cir. 1997) (internal
19
citations omitted) (emphases added).
Contrary to Oracle’s attempt to limit the doctrine, the general test for whether there is an
20
21
implied license is whether “the entire course of conduct between a patent or trademark owner and
22
an accused infringer” creates such an implied license. McCoy v. Mitsuboshi Cutlery, Inc., 67 F.3d
23
917, 920 (Fed. Cir. 1995). The evidence here supports a finding of implied license.
24
V.
25
Google chose not to present its defenses of patent misuse, use by the United States,
unclean hands, and express license, and therefore does not oppose Oracle’s motion
on these defenses.
26
In Section VI of its Motion, Oracle moves for judgment as a matter of law as to Google's
27
Sixth (patent misuse), Eighth (use by the U.S.) and Nineteenth (unclean hands) defenses, as well
28
as Google's defense of express license. Although Google believes these defenses have merit,
18
GOOGLE’S OPPOSITION TO ORACLE’S RULE 50(A) MOTION FOR PHASE II
Case No. 3:10-CV-03561 WHA
666096.01
1
Google chose not to present these defenses at trial. Google therefore does not oppose Section VI
2
of Oracle’s Motion.
3
VI.
4
5
Conclusion
For the foregoing reasons, Google requests that the Court deny Oracle’s Rule 50 Motion
at the close of all the Phase II evidence.
6
7
8
Dated: May 17, 2012
KEKER & VAN NEST LLP
By:
9
/s/ Robert A. Van Nest
ROBERT A. VAN NEST
Attorneys for Defendant
GOOGLE INC.
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
19
GOOGLE’S OPPOSITION TO ORACLE’S RULE 50(A) MOTION FOR PHASE II
Case No. 3:10-CV-03561 WHA
666096.01
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?