Search Engine Giant Google seems to be in for some tough times ahead. It has the delicate task of convincing Judge William Alsup in court on Thursday that the company did not willfully infringe the Android patent held by Oracle. If it fails to do so it might have to pay triple the damages being claimed by Oracle which is $ 2.6 billion.
On Thursday, Oracle and Google will be in court for a hearing in the legal battle over Google’s alleged patent infringement in Android. The purpose of the hearing is to decide whether Oracle damages expert, a Boston University economics professor, Iain Cockburn, who has estimated the damages Google has to pay, should be excluded from the case.
Google is of the opinion that the expert’s methodology is flawed and filed a motion to have his opinions excluded from trial which is scheduled for October 31. Legal experts doubt whether Google’s motions will prevail although they believe the tougher task for Google would be to answer some tough questions which will be framed by Judge Alsup. The crucial one being whether Google implicity acknowledged in a court filling last month that it infringed Oracle’s patents.
There is also a contention between the two sides regarding the trial date. While Oracle wants the trial to be held on the scheduled date, Google is hoping that the case is stayed pending reexamination of the patents in issue. The reason forwarded by Google is that waiting for the patent office’s final rulings would narrow the focus of the case. The company also hinted, for the first time, that it might be open to a settlement with Oracle.
The case has its beginnings in last August when Oracle sued Google sayings its Android operating system violates Java-related patents. Oracle acquired these patents when it bought Sun Microsystems. If this contention is upheld by the court, then Google might be forced to start charging tablet and smartphone makers a license fee for use of the software, which is free now.
Google contends that Cockburn calculated its damages at an `extraordinarily broad’ range of USD 1.4 billion to 6.1 billion. Oracle says the figure is precisely $ 2.6 billion, approximately, what it claims, Google would have to pay Sun to license the patents legally.
In its motion to have Cockburn removed, Google said that he ignored the fact that it tried to negotiate a Java license with Sun several years ago. Google’s lawyers wrote, “there is no need to speculate about the cost of a license because Google and Sun actually engaged in negotiations regarding a license to the entirety of Java.”
This statement by Google’s lawyers seems to have put it into hot water since Alsup took that as a sign that Google may have knowingly infringed Oracle’s patents and Google will have to explain this at Thursday’s hearing.
Commenting on Google’s statement, Alsup wrote last week, “It appears possible that early on Google recognized that it would infringe patents protecting at least part of Java, entered into negotiations with Sun to obtain a license for use in Android, abandoned the negotiations as too expensive and then carried on with Android without any license.”
David Mixon, patent lawyer with Bradley Arant Boult Cummings who has been following the case says Google is likely to respond with one of the two arguments: One, it could say it never expected to infringe Sun’s patents and tried to negotiate the license merely as a precaution or, two, it could say that having failed to negotiate a license, Google changed its plans and designed Android in a way that it does not infringe the patents.
However, Google is in a sticky position and if found guilty of willful infringement could be asked to pay triple the damages. Florian Mueller, author of the FOSS Patents Blog says that the risk factor for Google stems from the question of willful conduct.
In a court filing on Wednesday, both Oracle and Google laid out their positions on whether the case should be put on hold. The U.S. Patent and Trademark Office has issued ‘ office actions’ rejecting Oracle’s claims related to four of its patents and upholding a fifth. However, the findings are preliminary and is not a strong indicator of how the PTO will ultimately rule.
Mueller and Mixon, both expect Alsup to stay the case pending the outcome of the reexaminations by PTO. Mixon said that it would be very unusual for a patent infringement case to continue while patents are subject to a reexamination.
If the case continues and Oracle wins at the trial and later the patents are deemed invalid it would turn out to be a waste of the court’s time. Oracle seems ready to take that chance, but it is up to the Judge to decide whether to stay some or all of its patent claims. Oracle noted in its claims on Wednesday that it sued Google for copyright infringement in addition to patent infringement and that its copyright claims are unaffected by the reexaminations.
Maxon and Mueller both agree that the Judge may try to push both the parties towards a settlement. Mueller said the possibility of a stay is the Judge’s most important lever to pressurize Oracle to reduce its demand so as to enable a settlement.
Another thorn in the side for Google may prove to be the other legal challenges to Android. Apple has filed a patent infringement case against Samsung over phones running Android and Microsoft has secured patent deals with HTC and others over their use of Android in phones. Moreover, at a recent auction of thousands of wireless related patents from Nortel Networks, Google lost to a consortium that included Microsoft and Apple. Mixon said that Google might be feeling a lot of pressure now.
As regards a settlement, Mixon said of Oracle, “It’s a delicate balance for them. They want to maximize the amount of royalties they can get from Android but don’t want to raise it to such a level that it forces phone makers to find a competing alternative.”