Oracle America, Inc. v. Google Inc.

Filing 1236

Statement re #1229 Order - ORACLE'S STATEMENT REGARDING FINANCIAL RELATIONSHIPS WITH COMMENTATORS - by Oracle America, Inc.. (Attachments: #1 Exhibit A, #2 Exhibit B, #3 Exhibit C, #4 Exhibit D)(Jacobs, Michael) (Filed on 8/17/2012)

FOSS Patents: Oracle v. Google trial: evidence of willful infringement outweighs claims ... Page 1 of 7
Share Report Abuse Next Blog»

Create Blog Sign In

WEDNESDAY, APRIL 18, 2012

CONTACT FORM

Oracle v. Google trial: evidence of willful
infringement outweighs claims of approved use

FOLLOW @FOSSPATENTS ON
TWITTER

12.7K followers

After the third day of the Oracle v. Google trial, this is my first post
on this litigation since the trial started. From the outset, I have been
monitoring the events in San Francisco by analyzing new filings on
the docket, Oracle's and Google's opening slides, media reports, and
the Twitter feeds of journalists who are in the courtroom. Fortunately
for the general public, Judge William Alsup is all for transparency.
The first of the three trial phases is about copyright liability, followed
by a patent liability phase and a remedies phase. The parties' opening
presentations addressed a number of copyright-specific issues but
placed the emphasis on the general issue of infringement. Oracle's
first slide right after the title page showed the famous Lindholm
email, which Google had failed seven times to get excluded from this
trial. It constitutes an admission that Google felt, shortly before this
lawsuit, that it needed a license. Oracle brought the Lindholm email
up again on pages 24 and 87, but also presented plenty of other
evidence, some of which I'll address further below. Google knew that
this was going to happen and designed its own presentation to
counter the impression of recklessness and lawlessness by suggesting
that Sun (before it was acquired by Oracle) welcomed and supported
the way Android makes use of Java.
Presumably the parties wanted to show the best evidence right at the
start, hoping to shape the way jurors are going to look at the tons of
information they will receive in the coming weeks. Google's lawyers
undoubtedly made the most out of the evidence they found in favor of
their equitable defenses, but there is only so much that presentation
can do when substance is lacking. Oracle's evidence of reckless
infringement appears to be fundamentally stronger, for several
reasons that I'll discuss in the following.

http://www.fosspatents.com/2012/04/oracle-v-google-trial-evidence-of.html

Submit

FOSS Patents: Oracle v. Google trial: evidence of willful infringement outweighs claims ... Page 2 of 7
Oracle's opening statement presented ten documents

Apple and Samsung CEOs to
meet on May 21 and 22 fo...

indicating willful infringement, from a five-year period in
the middle of which Google launched Android
Certain Google-internal documents indicate in no uncertain terms an
awareness of a need for a license at different points in time during the
five-year period from Google's decision to use Java to the eve of the
filing of this lawsuit:
1. July 26, 2005: "Must take license from Sun" (page 21 of
Oracle's slide deck)
2. October 11, 2005 (p22 and p87): "[option] 2) Do Java anyway
and defend our decision, perhaps making enemies along the

Just discovered: Apple hit
Motorola and HTC with s...
Oracle and Google comment on
(copyright-related) d...
Former Sun chief about
Google: 'immune to
copyrigh...
Open-sourcing of Java and API
copyrightability are...
Motorola virtually concedes
infringement of oversc...

way."
3. February 10, 2006 (p43): "This has mostly taken the form of
helping negotiate with my old team at Sun for a critical
license."
4. March 24, 2006 (p73): "Java.lang api's are copyrighted."
5. May 14, 2006 (p45): "How are we doing on the Sun deal? Its
[sic] it time to develop a non-Java solution to avoid dealing
with them?"
6. May 11, 2007 (p48): "I don't see how we can work together and
not have it revert to arguments of control. I'm done with Sun
[...] They won't be happy when we release our stuff, [...]"
7. August 11, 2007 (p50): "Sun chose GPL for this exact reason so
that companies would need to come back to them and take a
direct license and pay royalties."
8. March 24, 2008 (p52): "2) Can we demonstrate the tooling,
emulator, developer environment, etc?
Yes, one-on-one only please, where you know exactly who you
are talking to. Please don’t demonstrate to any sun employees
or lawyers."
9. May 30, 2008 (p51): "These restrictions prevent Apache
Harmony [a codebase parts of which Google used to build
Android] from independently implementing Java SE
(Harmony can't put those restrictions on their own users and
still Apache license the code) not to mention Android (though
that's water under the bridge at this point)."

Judge plans to inform jury that
structure, sequenc...
Judge denies assertion of
revived Oracle patent bu...
Oracle 'intends to assert
[revived] patent in Phas...
Copyrightability of Java APIs
would be consistent ...
Preliminary ITC ruling holds
Apple to infringe a 3...
Samsung filed its defenses
against Apple's second ...
Motorola said Seattle FRAND
case could affect ITC ...
Court to hold hearing on July 5
to discuss if Appl...
Oracle Java patent rises like
Phoenix from the ash...
Oracle asks court to clear up
potential confusion ...
The pragmatic approach to the
copyrightability of ...
Andy Rubin knew that a cleanroom implementation o...
Motorola told judge its $4
billion royalty demand ...

http://www.fosspatents.com/2012/04/oracle-v-google-trial-evidence-of.html

FOSS Patents: Oracle v. Google trial: evidence of willful infringement outweighs claims ... Page 3 of 7
10. August 6, 2010, the Lindholm email (p3, p24, p87): "We've

The Lindholm testimony and
the reality of Java lic...

been over a bunch of [technical alternatives to Java for
Android], and they they all suck. We conclude that we need to
negotiate a license for Java under the terms we need."
Google counters the ten items listed above by pointing to two late2007 documents: a blog post in which then-Sun CEO Jonathan
Schwartz, in Google's words, "publicly applaud[ed]" Android, and an
email from Schwartz to then-Google CEO Eric Schmidt offering to
"support" the announcement of Android. To "applaud" and to
"support" are reactions that fall far short of granting a license. In my

Motorola's patent enforcement
against Apple will c...
Oracle and Google find
common denominator for
tell...
Motorola under pressure in
Germany from Microsoft ...

25+ years in the technology industry, I've seen and authored or co-

Oracle v. Google trial: evidence
of willful infrin...

authored countless license agreements spanning dozens of pages in

Samsung asserts eight more

each case (not even counting exhibits), but I've never seen such a
thing as a license grant, between two large players in the technology
industry, that would consist of only a sentence or two -- nor have I
ever seen a license grant that didn't contain the magic word "license".
Unsurprisingly, other pieces of evidence (items 8, 9 and 10 above)
show that Google still had legal cocnerns and later concluded it (still)
needed a license.
Google also points to what Oracle CEO Larry Ellison said in June
2009 about Sun "opening up Java, giving Java to the world". That

patents against Apple i...
Apple and Samsung CEOs and
chief lawyers agree to ...
Apple keeps up pressure on
Motorola Mobility with ...
German Apple lawsuit against
HTC over multilingual...
Motorola calls $4 billion
royalty figure 'misleadi...

and those statements were broad and general, as opposed to a

ITC judge pushes back
Samsung case against Apple
b...

promise to grant a retroactive, restriction-free and royalty-free

Apple appeals ITC dismissal of

was shortly after Oracle had announced a merger agreement with
Sun, but more than six months before the deal was formally closed --

complaint against M...

license to anyone after the closing of the deal.
The Lindholm email was written almost three years after what Google
now suggests constituted a license grant. Back in August 2011, when I
published a passage of the Lindholm email that showed up in one of
Judge Alsup's orders, I stressed that "the combination of the Rubin
email [item #2 above) and the Lindholm draft email is very strong -far stronger than any of the two documents on its own", pointing to
the fact that they span a long period. Oracle's opening statement on
Monday showed seven more pieces of evidence from the period
between those two documents, and one that even predates the first.
Judge Alsup's preliminary assessment of the evidence long
before the trial
During those 20 months of litigation, I never saw documents or
reports from public hearings according to which Judge Alsup would

Deficiencies of US$280,000
bond may require Apple ...
Microsoft asks ITC to delay
decision on Motorola's...
German court might ban
iPhone and iPad again
withi...
The significance of May 7 for
the temporary restra...
Apple is allowed (at long last)
to intervene in Lo...
Mannheim Regional Court
postponed MotorolaMicroso...

http://www.fosspatents.com/2012/04/oracle-v-google-trial-evidence-of.html

FOSS Patents: Oracle v. Google trial: evidence of willful infringement outweighs claims ... Page 4 of 7
have described Google's references to Jonathan Schwartz' applauding

Microsoft wins in U.S. court,
prevents Motorola fr...

blog post and support-offering email as extremely powerful, but he
said some important things about certain evidence of willful
infringement. For example, in July 2011 the judge noted, in light of
item #2, that Google engaged in "Soviet-style negotiation" (defined as
"What's mine is mine and what's yours is negotiable") and "may have
simply been brazen, preferring to roll the dice on possible litigation
rather than to pay a fair price". When he became aware of the
Lindholm email, he told Oracle's counsel that it's "a pretty good
document for [Oracle]" that "ought to be, you know, big for [Oracle]
at the trial". He warned Google's counsel that a legendary San
Francisco trial lawyer "needed a document like [the Lindholm email],
and the Magna Carta, and he won every case", so in the judge's

ITC judge postpones MicrosoftBarnes&Noble decisio...
Microsoft-Motorola case in
Seattle: claim construc...
Oracle and Google are still
$700 million apart on ...
ITC postpones decision on
Microsoft complaint agai...
Microsoft brushes aside
Motorola's arguments
again...

opinion, Google was "going to be on the losing end of this document,
and with Andy Rubin on the stand". He then encouraged Google to
"think about that".
Asymmetrical efforts to exclude evidence
This is only extrinsic evidence, but it also says something that Google
went to extreme lengths to fight some of the incriminating evidence
while Oracle contented itself with motions that are the normal course
of business in litigation and easily accepted when those motions to
strike or exclude were denied.

Judge Posner denies Motorola
motion to throw out A...
Oh no: German courts and
clueless politicians want...
Motorola doesn't want to be
barred by a U.S. court...
Analysis of Apple's claim
construction win over Sa...

attempts to withhold the Lindholm email (just one of the ten pieces of

John 'Mighty' Quinn is
readying to represent
Samsu...

evidence shown above) from the jury. Subsequently, Google made

Apple drops patent on

In this blog post I described the first five of Google's seven failed

centralized event alerts fro...

two more attempts. It unsuccessfully appealed the district court's
decisions on the Lindholm email to the Federal Circuit, and brought a
motion in limine to exclude it as misleading (which was denied; see
item 2 in this blog post).
"Evasive" Google CEO Larry Page "dodges" questions
Several media reports from Day 3 of the trial independently confirm
that Google CEO Larry Page was unconvincing in his second
appearance before the jury -- the one in which he was, in particular,
quizzed about the Lindholm email:
• Los Angeles Times: "Google CEO Larry Page evasive in Oracle
patent suit testimony", "Page rarely made eye contact with
Oracle's feisty attorney"

Apple is suing HTC in Munich
over the two patents ...
Munich court denies Microsoft
a preliminary injunc...
European Commission
investigates Motorola
Mobility...
Patent abuse hurts the German
economy: Microsoft h...
► March (45)
► February (42)
► January (40)

• Wall Street Journal: "Page did not appear to endure
Wednesday's proceedings as well as he had the previous day.

► 2011 (335)

http://www.fosspatents.com/2012/04/oracle-v-google-trial-evidence-of.html

FOSS Patents: Oracle v. Google trial: evidence of willful infringement outweighs claims ... Page 5 of 7
He frequently stared up at the courtroom ceiling as he was

► 2010 (106)

pressed for direct responses by both Oracle's counsel and
Alsup."
• Wired: "Google Boss Takes Stand in Oracle Trial, Dodges

TWITTER UPDATES
Follow me on Twitter

Android Questions": "Page was slow to answer questions —
often failing to making eye contact — and he ended up saying
very little. In many instances, Judge William Alsup spoke up to
instruct Page to answer with 'yes,' 'no,' or 'I'm not sure,' and
Page typically chose the later — or 'I don’t recall.'"
(There are other great reports from the third trial day, but I picked
the three above because of what they say about Page's evasiveness.)
As I told the L.A. Times, I believe the problem for Larry Page is that
he was personally very much involved with the decision to use Java
without a license. Now he's the CEO of the company and particularly
afraid of making a concession: in that case he would be blamed not
only for the outcome of the litigation but also for the original

LINKS

decision. I don't mean to say that his denial of recollection was

Twitter: FOSSpatents

dishonest (considering that he must have received huge numbers of

Google+ profile

emails over the years), but it certainly does contrast with some

Contact Form

evidence of his personal involvement.

Smartphone patent disputes:
visualizations and reference lists

On Thursday, there will be more discussion of the Lindholm email.
Tim Lindholm himself is on Oracle's list of the anticipated next ten

NoSoftwarePatents.com

witnesses, and so is Andy Rubin.
Disclosure of recently-formed consulting relationship with

SUBSCRIBE TO

Oracle

Posts

I have been following Oracle v. Google since the filing of the lawsuit

Comments

in August 2010 and have read pretty much every line of each court
filing in this litigation. My long-standing views on this matter are well
-documented. As an independent analyst and blogger, I will express
only my own opinions, which cannot be attributed to any one of my

FOLLOWERS

diversity of clients. I often say things none of them would agree with.
That said, as a believer in transparency I would like to inform you
that Oracle has very recently become a consulting client of mine. We
intend to work together for the long haul on mostly competitionrelated topics including, for one example, FRAND licensing terms.
We've known each other ever since I vocally opposed Oracle's
acquisition of Sun Microsystems (not because of Java), but that's
history as I fully respect the European Commission's clearance
decision and the subsequent closing of the deal. When Oracle and I

http://www.fosspatents.com/2012/04/oracle-v-google-trial-evidence-of.html

FOSS Patents: Oracle v. Google trial: evidence of willful infringement outweighs claims ... Page 6 of 7
started talking about areas in which I could provide analysis, we

Join this site

thought that the Google litigation was going to be over by the time we

with Google Friend Connect

would work together. Due to various delays, the trial now happens to

Members (424) More »

occur pretty much at the start of this new relationship, and I will
continue to cover this lawsuit in detail on this blog, especially during
these eventful and interesting weeks. I won't have access to
confidential information, but as Judge Alsup noted, this is a public
trial, so there's no shortage of publicly available information.
Last year I mentioned my work on a Microsoft-commissioned study
on the worldwide use of FRAND-pledged patents, and it's no secret
that I have multiple clients in the financial services industry. Nothing

Already a member?Sign in

has changed about my existing working relationships in any way. I
am proud to serve these first-rate clients, and I will continue to work
hard to provide all of them -- and all of my readers -- with reliable

TOTAL PAGEVIEWS

and accurate analysis.
If you'd like to be updated on the smartphone patent disputes and
other intellectual property matters I cover, please subscribe to my
RSS feed (in the right-hand column) and/or follow me on Twitter

SEARCH THIS BLOG

Search

@FOSSpatents and Google+.
12.7K followers
ABOUT ME

FLORIAN MUELLER

Florian Mueller is an
award-winning

+23 Recommend this on Google

intellectual property

Share |

activist-turned-analyst
with 25 years of software industry
expertise spanning across different
market segments (games, education,
productivity and infrastructure
software), diverse business models

Newer Post

Home

Older Post

and a variety of technical and
commercial areas of responsibility,
enabling a holistic perspective.
Florian advises clients on the patent
wars surrounding mobile devices,
and on their economic and technical
implications. His consulting services
are available directly (contact form,
LinkedIn profile) as well as through
two primary research firms (Gerson

http://www.fosspatents.com/2012/04/oracle-v-google-trial-evidence-of.html

FOSS Patents: Oracle v. Google trial: evidence of willful infringement outweighs claims ... Page 7 of 7
Lehrman Group, Coleman Research
Group) serving the financial
community. (In order to avoid
conflicts of interest, Florian does not
hold or initiate transactions in any
technology stocks or derivatives
thereof.)
VIEW MY COMPLETE PROFILE

http://www.fosspatents.com/2012/04/oracle-v-google-trial-evidence-of.html