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Oracle Seeks Stiff Penalties from Google

Google immediately started the legal wheels turning to try to get the estimate made by Oracle’s expert thrown out

That reverberating scream you hear, the one that sounds like a wounded water buffalo beset by a pack of rabid hyenas, is Google after it saw how much Oracle expects in damages from its patent and copyright suit over Android's alleged misuse of Java.

Once it got the figure Google immediately started the legal wheels turning to try to get the estimate made by Oracle's expert thrown out as "speculative and arbitrary," full of "fundamental and disqualifying" legal errors before the case gets to trial on October 31 (Halloween, how perfect).

Google doesn't want a whiff of his sealed "opening damages report" or his testimony getting anywhere near a jury because his conclusions "would prejudice Google."

The five-page letter saying so that Google's lawyers wrote to the presiding judge Monday is redacted so key numbers are blacked out but there's enough substance left to see that Oracle wants a hefty chunk of Google's mobile ad revenues plus compensation for fragmenting Java.

Apparently the estimate recalls that Microsoft paid Sun $900 million "to cover the risk of fragmentation to Java" when the two settled Sun's antitrust charges years ago, suggesting what league everybody's batting in.

The all-important royalty base that Boston University School of Management economics professor Iain Cockburn used has been censored but not the 50% royalty rate he applies against it.

There's also the little matter of willful infringement and treble damages so 50% times three equals 150% and, yes, that can happen.

The letter confirms rumors that Google might have cut a deal with Sun before Oracle came on the scene but rejected the terms offered. The lawyers say that deal "would have included far more than the patents-in-suit." The sum Sun wanted has been blacked out but it couldn't have been more than Google's staring at right now. It may come to rue the day it didn't bite the bullet then.

We owe discovery of the letter to Florian Mueller who's been tracking this suit as well as the 43 other suits currently lodged against Android like a hound dog after a fox.

It's the first time in the 10-month-old case that the industry has gotten even a glimpse into Oracle's demands and Florian figures that - worst case - the infringement damages alone would "exceed any money Google has made with Android so far" and could amount to "even more going forward."

Besides if Google loses it may have to change the Dalvik virtual machine that's at the bottom of the whole argument - Oracle doesn't have to grant it a license - and that could impact all existing Dalvik-based applications. A defeat is also likely to impact Android's "free" business model. Google might have to start charging significant per-copy licensing fees unless, as Florian hazards, it turns the thing into a loss leader.

Anyway, Google got what it asked the judge for - a Daubert hearing to sort out how Cockburn arrived at what Google calls his "unreliable, misleading" conclusions that it finds so "inappropriate for presentation to the jury." The hearing to determine if he followed the right rules is set for July 21. Oracle will be heard from before then. Hopefully they'll go light on the sealing wax.

Florian's analysis of where he thinks Google's case is weak and contradictory and where he thinks Oracle may not be a shoo-in is at http://fosspatents.blogspot.com/2011/06/oracle-wants-huge-cut-of-googles-mobile.html. The telltale letter is at Public Version of Google Filing Re. Oracle Damages. And Cockburn's 27-page CV is at http://people.bu.edu/cockburn/CockburnCV.pdf.

More Stories By Maureen O'Gara

Maureen O'Gara the most read technology reporter for the past 20 years, is the Cloud Computing and Virtualization News Desk editor of SYS-CON Media. She is the publisher of famous "Billygrams" and the editor-in-chief of "Client/Server News" for more than a decade. One of the most respected technology reporters in the business, Maureen can be reached by email at maureen(at)sys-con.com or paperboy(at)g2news.com, and by phone at 516 759-7025. Twitter: @MaureenOGara

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