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Oracle v Google Java Trial Up in the Air

On Thursday the court entered another order saying it won’t set a trial date any time soon

Last week Oracle's long-simmering Java infringement suit against Google, already postponed from Halloween, was scheduled to go to trial "on or after March 19."

On Thursday the court entered another order saying it won't set a trial date any time soon and suggesting that given the demands on its calendar it could be 2013 before the case gets heard.

Presiding Judge William Alsup, who figures, speaking "from experience," that the trial will take two months, also said in his order that "The court will not set a trial date until Oracle adopts a proper damages methodology, even assuming a third try is allowed (or unless Oracle waives damages beyond those already allowed to go to the jury). For this ‘delay,' Oracle has no one to blame but itself, given that twice now it has advanced improper methodologies obviously calculated to reach stratospheric numbers."

The judge also described Google's attempt to block the jury from ever seeing the damning Lindholm e-mail by taking the issue to the Court of Appeals for the Federal Circuit as "another roadblock to setting a trial date" and he tells Oracle that if it waived its right to present the e-mail they wouldn't have to wait on the appeal court's decision.

Case tracker Florian Mueller says, "Given the incredibly useful silver bullet that the Lindholm e-mail represents, it wouldn't make sense for Oracle to agree to such a waiver - not even if the trial date slipped into 2013."

Florian, who figures Oracle will now cough up a damages claim the court can accept, is actually kinda shocked at the judge's proposal.

He writes, "While I understand that the judge blames Oracle for not having complied in full with his guidelines on damages, today's order comes across as being a bit too harsh on Oracle since it is not in any way responsible for Google's long-shot petition to the Federal Circuit, which is part of a wider strategy on Google's part to delay resolution of this case and to benefit from this delay commercially. Obviously, threatening with a delayed trial gives the judge leverage only against Oracle, but even if he has leverage of a certain kind, he should use it fairly. Few people know better than Judge Alsup the numerous efforts Google has made to prevent the Lindholm e-mail from being shown to the jury. It's surprising that he's now prepared to reward Google for its delay tactics and for its persistent efforts to prevent the jury from finding out the truth about Google's full awareness of the need for a Java license."

As a memory refresher before Oracle lodged suit Google engineer Tim Lindholm told Google's supreme command in an e-mail that Android needed a Java license because the alternatives to Java "all suck," a piece of evidence for infringement as well as damages that the judge has previously considered damaging to Google.

The threatened delay is a blow for Oracle, which is already chaffed by the judge's decision last week to split the proceedings into three parts with a single 12-man jury deciding first Oracle's copyright infringement charges, then its patent infringement claims, and finally any damages Google might owe and the extent of its willfulness. Any the third-party witnesses will have to turn up multiple times, the judge said, no videotapes.

Oracle wanted to present all its evidence at once. It was also hoping the trial would start this month. Google, on the other hand, wanted to push it off until at least the summer so it'll be thrilled if the trial doesn't come off until next year.

Florian says last week's order doesn't hold out the possibility of a stay to accommodate the ongoing re-examination of five Oracle patents-in-suit by the US Patent and Trademark Office. But that doesn't mean, he says, that Judge Alsup, who wishes Oracle and Google would settle their differences and go away, couldn't issue a stay before the patent part of the trial starts.

The jury will be told a re-examination is in progress including the PTO's prior art concerns and its initial findings of invalidity

See http://fosspatents.blogspot.com/.

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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