|By Maureen O'Gara||
|January 5, 2012 01:45 AM EST||
Oracle’s long-simmering Java infringement suit against Google, postponed from Halloween, has been scheduled to go to trial on or after March 19, according to case tracker Florian Mueller.
It’s not the firmest date ever and to Oracle’s chagrin, federal Judge William Alsup has decided that the proceedings will be in 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.
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.
Florian says Wednesday’s order doesn’t hold out the possibility of a stay to accommodate a 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 also be told a re-examination is in progress including the PTO’s prior art concerns and its initial findings of invalidity. However, despite a string of Google appeals, it will also be told about the compromising Lindholm e-mail in which a senior Google staffer told Google’s supreme command it needed a Java license, a piece of evidence for infringement as well as damages that the judge has previously considered damaging.
At this point Florian figures that the judge realizes “the best chance to get the parties to settle is a reasonably firm trial date and, possibly, a ruling on the copyright part of the case. Once the copyright phase is over, the possibility of a stay of the patent liability part may be on the agenda once again.”
Otherwise the court’s gonna need 12 jurors with well-padded bottoms and the ability to recall testimony from in a previous phase.
Besides damages, Oracle may be facing the scarifying possibility of a permanent injunction. The judge’s order reads, “Evidence and argument relevant solely to whether a permanent injunction should issue must be saved for a subsequent proceeding, if necessary, after the jury trial.” Meanwhile, Google can present evidence that third-party OEMs changed infringing components of Android, leaving Oracle to prove they used unmodified code. It will have to offer proof of “direct infringement by OEMs as a predicate for proving indirect infringement by Google.”
Florian takes exception to this ruling claiming it lets Google have its cake and eat it too: “it gets formal control over a technology, but it also gets to shirk responsibility for infringement. It gets the benefit of the doubt that truly free and open source software would legitimately enjoy but it doesn't deserve it.”
Oracle and Google have until Wednesday January 11 to object to the order. Florian thinks Google is unlikely to object. Oracle could kick up a fuss over the trifurcated trial – for purposes of appeal – but that may not result in a formal objection.
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