

Oracle v. Google: Judge leaves Oracle reeling on viability of its damages claims - grellas
http://www.groklaw.net/article.php?story=20120119214029378

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grellas
A few thoughts:

1\. Oracle has stepped into a bear-trap in this case and is trying to
extricate itself. This does not mean that it has a losing case on the merits.
That is a matter yet to be decided and it will get as fair a trial in this
court as it would anywhere else. Given the nature of its claims, and the murky
standards associated with its patent and copyright claims, it likely will get
some damage award. But Oracle does not want just _some_ damage award. It wants
to hold the prospect of a potentially _devastating_ damage award over the
corporate head of Google and to use that as leverage to gain a lasting
foothold in the dollar flow of the mobile space via a settlement with Google
on potentially brutal terms.

2\. Judge Alsup is as fair-minded and talented judge as one could want but he
also is a tough judge in terms of managing what he allows to come before his
court. And he is not buying the outrageously phony damage claims that Oracle
is trying to foist upon this trial via its designated expert. Because the law
permits him to do so, he is effectively pre-screening what can come before a
jury in the case and he has declared that he will put a tight limit on what is
permissible. This means that Oracle will not be able to take its crap-shoot
before the jury in hopes of gaining _in terrorem_ settlement leverage over
Google through the possibility that a crazy jury might be inclined to try to
slam Google with a monstrously large damage award.

3\. Just last year, Judge Phyllis Hamilton, a colleague of Judge Alsup's,
reversed a $1.3 billion award in favor of Oracle against SAP. That case
involved blatant theft of Oracle's software by TomorrowNow, an SAP subsidiary,
and was so bad that SAP admitted liability up front such that the only issue
to be tried was the amount of the damages suffered by Oracle. In that case,
Oracle put Larry Ellison on the stand and had him speculate that Oracle must
have lost $4 billion in software sales as a result of the admitted
infringements. There was no factual basis for this claim - just the opinion of
the company CEO. Yet that sort of evidence was allowed to go before a jury and
the jury bought it. In rethinking the issue (for she had been the judge who
had initially allowed it), Judge Hamilton held that this was improper and, in
doing so, reduced the verdict to less than a fourth of what the jury had
entered. (see, e.g., this report on the case:
[http://www.crn.com/news/applications-os/231600674/judge-
redu...](http://www.crn.com/news/applications-os/231600674/judge-reduces-
damages-in-oracle-vs-sap-
lawsuit.htm;jsessionid=W8LCqI66SPKgQK6-YnhVJA**.ecappj03)) This was a correct
ruling and Oracle's prospects of getting it reversed are about zero.

4\. What Judge Alsup is doing here is acting as gate-keeper to make sure that
such junk does not enter into this trial either. In theory, Oracle should not
mind this. If all they want is a fair trial, there is nothing wrong with
excluding unsupportable expert testimony from that trial. But that is not what
Oracle wants. It wants, above all, to be able to hold a huge threat over
Google to pressure it into settling on very bad terms.

5\. In that light, let me translate a few of the items in this order and in
the surrounding procedural context: (a) Oracle asked to be able to dismiss its
patent infringement claims without prejudice (in effect, asking the court for
permission to drop those claims for the moment so that it can reassert them
pretty much any time it wants to at a later date, thus keeping a cloud of
uncertainty hanging over the Android platform) - the judge said no -
translation: "I am not about to let you play games with the judicial system
for ulterior motives: you will get your trial and you will get it here, just
as you asked for it in causing Google, the court, and a lot of others to
devote huge resources to the handling of the issues you raised;" (b) Oracle
asked that the judge bifurcate its claims such that the copyright claims would
be tried first and the patent claims tried in a separate phase of the trial
many months down the road - the judge said no - translation: "You will put on
your entire case in one place and not be allowed to play the courts
opportunistically by going for multiple bites at the apple;" (c) the judge
took the unusual step of allowing Oracle yet a third try at amending its
expert's damages claims even though he had ample discretion to say "enough is
enough" at this point and to toss them altogether - the judge was not being
"nice" in doing this - translation: "Unless you truly come in with something
credible, I am going to slam your expert's claims once and for all and I am
creating a solid record of giving you a full and final opportunity to fix the
problems after fair warning that this was coming and in that way no appellate
court will ever reverse that ruling."

6\. This is a complex case that could take a variety of directions but one
thing is certain: it is in the hands of a very able judge and, if Oracle will
ultimately prevail with a big outcome, it will only do so because it deserves
this under the law and not because it will get away with gaming the system (as
it did, for example, in the TomorrowNow case). And that is why Oracle is
reeling concerning its claimed damages in light of this ruling. It is getting
trapped (as it should be for these sorts of shenanigans) and it knows it.

~~~
chalst
_Yet that sort of evidence was allowed to go before a jury and the jury bought
it._

It might be good to have a term for that, if there isn't one already. Say,
_damages theatre_ \- pushing inflated "estimates" of damages to journalists
and juries.

------
babarock
>suing Google has a severely steep climb up a very tall mountain. Google hires
the best lawyers and they fight like bulldogs. Polite bulldogs. But they don't
just roll over, and Google's track record is very, very impressive.

Can't we at least pretend that what happens in court is a matter of Justice
and Right or Wrong? I'm personally happy that Oracle isn't winning this case,
since I wish more people will have the right to implement their own Java in
their products. It just pains me that you have to be a mega-corporation with
the strongest legal department in the world, in order to do this.

~~~
rbanffy
> Can't we at least pretend that what happens in court is a matter of Justice
> and Right or Wrong?

It is. Oracle gets a chance to present its case, so does Google. The better
the lawyers, the more compelling case they can make, but, in the end, all has
to be based on facts, not empty rhetoric, and based on those, the jury will
decide what the most appropriate measure to take.

~~~
dylan62
I'm curious - heve you ever been a juror? I've only done it once, but for that
trial any correlation between justice and what the jury decided was purely
coincidental.

~~~
rbanffy
Yes, but in Brazil only crimes against human life (murders and attempts) are
decided by juries. What you describe is a good reason for judges to be
cautious about what they admit the jury to see.

------
TDL
"Google hires the best lawyers and they fight like bulldogs. Polite bulldogs.
But they don't just roll over..."

That statement struck me. It's interesting how often people confuse being
polite with being a push over.

~~~
btilly
Anyone who makes that mistake should read _The Godfather_. Very polite. No
explicit threats at all. But pretty much the opposite of a pushover.

------
adgar
> Do you remember in the beginning, when this case was new, and a self-
> described "expert" in the media was pushing the idea that Oracle would win
> billions and billions in damages?

 _cough_ Florian Mueller _cough_

~~~
cenuij
I've often seen it insinuated that Florian Mueller is paid shill for MS and/or
Oracle. I read this in the same forums and circles that once suggested Maureen
O'Gara was a paid shill for SCO. Well it turned out they were right about
O'Gara:

"And why does SCO owe money to the creditors Maureen O'Gara, Alok Mohan, and a
private detective?"
<http://www.groklaw.net/article.php?story=20090913224436712>

My question is, has anyone found a link between Florian Mueller and MS or
Oracle?

~~~
nl
MS paid Mueller for (at least) one study:

 _Microsoft has commissioned this study._

[http://fosspatents.blogspot.com/2011/10/study-on-
worldwide-u...](http://fosspatents.blogspot.com/2011/10/study-on-worldwide-
use-of-frand.html)

