Oracle America, Inc. v. Google Inc.

Filing 908

MOTION to Deem Facts Admitted by Google filed by Oracle America, Inc.. Responses due by 4/16/2012. (Attachments: #1 Proposed Order, #2 Declaration of Marc David Peters, #3 Exhibit 1, #4 Exhibit 2)(Jacobs, Michael) (Filed on 4/12/2012)

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MORRISON & FOERSTER LLP
MICHAEL A. JACOBS (Bar No. 111664)
[e-mail]
KENNETH A. KUWAYTI (Bar No. 145384)
[e-mail]
MARC DAVID PETERS (Bar No. 211725)
[e-mail]
DANIEL P. MUINO (Bar No. 209624)
[e-mail]
755 Page Mill Road, Palo Alto, CA 94304-1018
Telephone: [phone] / Facsimile: [phone]
BOIES, SCHILLER & FLEXNER LLP
DAVID BOIES (Admitted Pro Hac Vice)
[e-mail]
333 Main Street, Armonk, NY 10504
Telephone: [phone] / Facsimile: [phone]
STEVEN C. HOLTZMAN (Bar No. 144177)
[e-mail]
1999 Harrison St., Suite 900, Oakland, CA 94612
Telephone: [phone] / Facsimile: [phone]
ORACLE CORPORATION
DORIAN DALEY (Bar No. 129049)
[e-mail]
DEBORAH K. MILLER (Bar No. 95527)
[e-mail]
MATTHEW M. SARBORARIA (Bar No. 211600)
[e-mail]
500 Oracle Parkway, Redwood City, CA 94065
Telephone: [phone] / Facsimile: [phone]
Attorneys for Plaintiff
ORACLE AMERICA, 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,

DECLARATION OF MARC DAVID
PETERS IN SUPPORT OF ORACLE
AMERICA’S MOTION FOR
ADMINISTRATIVE RELIEF TO DEEM
FACTS ADMITTED BY GOOGLE

Defendant.

Dept.: Courtroom 8, 19th Floor
Judge: Honorable William H. Alsup

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v.

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GOOGLE INC.

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Case No. CV 10-03561 WHA

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PETERS DECL. ISO ORACLE MOTION TO DEEM FACTS ADMITTED BY GOOGLE
CASE NO. CV 10-03561 WHA
sf-3130521

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I, Marc David Peters, declare as follows:

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I am an attorney at Morrison & Foerster LLP and am counsel of record to Plaintiff Oracle

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America, Inc. (“Oracle”). I have personal knowledge of the matters set forth herein and, if called

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to testify, could and would testify competently to the following.

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1.

On April 3, 2012, my colleague Daniel P. Muino sent an email to counsel for

Google, Inc. (“Google”) proposing thirteen separate stipulations for purposes of trial, including:


The specifications for the 37 Java API packages at issue, and the selection, arrangement,

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and structure of API elements within those specifications, meet the Copyright Act’s

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standard for originality.

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A true and correct copy of the above-referenced correspondence is attached as Exhibit 1.

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2.

proposed stipulation above. See Exhibit 1.

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3.



Google has admitted that the 37 Java APIs meet the threshold for originality required by
the Constitution.



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On April 10, 2012, I sent an email to counsel for Google proposing alternate

stipulations on admissions by Google for purposes of trial, including:

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On April 4, 2012, counsel for Google responded by email, declining to accept the

Google has admitted that the Java programming language is distinct from the Java APIs
and class libraries.



Google has admitted that the only way to demonstrate compatibility with the Java

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specification is by meeting all of the requirements of Sun’s Technology Compatibility Kit

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(“TCK”) for a particular edition of Sun’s Java.

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

Google has admitted: TCKs were only available from Sun, initially not available as open

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source, were provided solely at Sun’s discretion, and included several restrictions, such as

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additional licensing terms and fees. In essence, although developers were free to develop

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a competing Java virtual machine, they could not openly obtain an important component

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needed to freely benefit from Sun’s purported open-sourcing of Java.

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PETERS DECL. ISO ORACLE MOTION TO DEEM FACTS ADMITTED BY GOOGLE
CASE NO. CV 10-03561 WHA
sf-3130521

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

Google has admitted: Although Sun offered to open source the TCK for Java SE, Sun

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included field of use (“FOU”) restrictions that limited the circumstances under which

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Apache Harmony users could use the software that the Apache Software Foundation

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created. Sun refused the ASF’s request for a TCK license without FOU restrictions.

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The email attached a draft brief explaining the underlying reasoning. A true and correct copy of

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the above-referenced correspondence is attached as Exhibit 2.

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4.

On April 11, 2012, counsel for Google responded. Counsel declined to accept

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most of Oracle’s proposals. Counsel placed material qualifications on the first proposal that

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rendered it unacceptable to Oracle. See Exhibit 2. I met and conferred with counsel for Google

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the evening of April 11, but we were unable to reach agreement.
I declare under penalty of perjury that the foregoing is true and correct and that this
declaration was executed on April 12, 2012 at San Francisco, California.
/s/ Marc David Peters
Marc David Peters

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PETERS DECL. ISO ORACLE MOTION TO DEEM FACTS ADMITTED BY GOOGLE
CASE NO. CV 10-03561 WHA
sf-3130521

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ATTESTATION OF E-FILED SIGNATURE
I, Michael A. Jacobs, am the ECF User whose ID and password are being used to file this

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Declaration. In compliance with General Order 45, X.B., I hereby attest that Marc David Peters

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has concurred in this filing.

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Dated: April 12, 2012

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/s/ Michael A. Jacobs
Michael A. Jacobs

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PETERS DECL. ISO ORACLE MOTION TO DEEM FACTS ADMITTED BY GOOGLE
CASE NO. CV 10-03561 WHA
sf-3130521

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