Judge Rejects Oracle's Patent Reinstatement, Closing Statements Expected Monday
April 26, 2012

Judge Rejects Oracle’s Patent Reinstatement, Closing Statements Expected Monday

A verdict in the copyright portion of the Oracle-Google trial could come as early as next week, as Google´s lead counsel informed Judge William Alsup that he expects his team to wrap up their case in this phase of the trial as early as Thursday.

The high-profile, intellectual property trial is being broken up into three phases: copyright issues, patents, and a final deliberation round for the jury if damages are found.

Google began its case on Tuesday by calling its chairman, Eric Schmidt, to the stand, followed by Android chief Andy Rubin and Google virtual machinist Dan Borstein.

Oracle´s lead counsel, David Boies, informed Judge Alsup that his side would have their closing statements completed by Friday.   Boies and Google´s lead counsel, Robert Van Nest, had agreed to 90 minute closing statements by each side.

However, due to the time needed to conference with the jury for instructions on reaching a verdict, Judge Alsup said he did not expect closing statements to happen until Monday, April 30, at the earliest.  A jury verdict may not be reached until the following week, he added.

As the copyright portion of the Oracle-Google trial draws to a close, the patent portion of the battle is looking even more contentious as Oracle said on Wednesday that it wanted to add another Java patent back into the trial -- bringing to 18 the total number of claims the jury would have to hear.

The patent had been previously invalidated by the U.S. Patent and Trademark Office (USPTO), but was reinstated upon further review.

However, Oracle had already agreed to drop the patent from the case, on the condition that the USPTO rejection was not overturned before the trial began.

Oracle argued that even though the trial began on April 16, before the USPTO reversed its initial decision, it is only in its initial phase involving copyright issues.  Since patent questions have not yet been addressed, Oracle has the ability to add the extra patent to its case, the company claimed.

Not surprisingly, Google´s legal team opposed the move, filing its own brief opposing Oracle´s request.  In the document, Google claimed that Oracle had “agreed irrevocably to dismiss no later than the day the trial commenced.”

Judge Alsup took Google´s side on the matter, rejecting Oracle´s request less than one day after it was made, saying it was too late for Oracle to introduce the additional patent into the case.

"The reversal [of the USPTO] came a few days too late, for the trial had already started and the dismissals with prejudice had already become effective," Alsup wrote.

“Oracle´s argument that the patent ℠trial´ has not yet started is wrong. There was and is one trial with three phases. The trial started on April 16.”

“This is not only the plain meaning of the term but any other interpretation would inject great prejudice given that the parties have relied on the issues to be tried and that reliance should not be turned on its head in mid-trial. Oracle will be required to stand by its word and live with the dismissal with prejudice,” Alsup said.

There is still plenty at stake as the trial moves forward, with tens of millions of dollars in damages, plus a percentage of Android´s future revenue, at stake.

Separately, new revelations came to light during Wednesday´s testimony, in which a November 2006 presentation describing a potential strategy for a Google phone was revealed, CNET reported.

The search giant had proposed to partner with T-Mobile with an open-software platform that allowed users to access Google´s services.

"At Google, we believe we can be successful in transforming the mobile experience -- in the same way we have revolutionized the fixed Internet experience," the document read.

Google had proposed an unlimited data plan for $9.99 (not including photos). The overall strategy had Google leveraging its online properties to establish qualified buyers for the Google Phone, then sending those leads to T-Mobile's online store, a move expected to save $180 in customer acquisition costs.

Google would have waived a commission, and applied $120 of the savings to a subsidized data plan, with the remaining $60 in savings used to cut T-Mobile's CPGA (cost per gross addition).

T-Mobile would have offered a subsidized Google unlimited data plan for $9.99 a month, with Google providing back-end service for its product suite designed to average 15MB per month. Customers would agree to self-help for Google applications as a condition of purchase, while Google would provide online support and on-phone FAQ for all Google applications. T-Mobile would offer standard customer service for non-Google issues.