

Oracle v. Google: "the value of this case keeps getting smaller and smaller" - grellas
http://www.groklaw.net/article.php?story=20120218041255197

======
grellas
I began my legal career working for several years at in Big Law. In one case,
a stultifying bureaucratic management for a major steel company was building a
new plant. After hiring a firm out of the midwest to manage the construction
on a fixed-fee contract, it proceeded to make life miserable for that firm by
making never-ending revisions to the project plans throughout the course of
construction and this not only caused that firm to incur cost overruns but
also had the effect of causing substantial delays in getting the work done.
Everything was done through a multi-layered committee committee structure,
with memos continually being circulated about needs to separate the "wheat
from the shaft" and like gems. When it was all done, this mega-sized steel
company went out and hired a professional hatchet firm to assemble a "delay
damages report" (I don't remember the exact name but I am sure it was much
more high-toned than my description here). It then used this report to send a
demand letter to the midwest firm, claiming that their management of the
construction project was inept and that it had to pay millions of dollars in
damages on account of the delays in construction. When they refused, they got
sued for the claimed damages.

I can still vividly remember how, as a young lawyer, I was so stunned by the
sheer _phoniness_ of this so-called expert report - here were a bunch of
bungling, bureaucratic committee types who couldn't make a key decision to
save their lives using a sham report to try to lay the blame for their own
faults at the feet of an innocent firm that had simply done its job.
_Everything_ in that report was couched in passive voice and dressed in self-
important language - to a point where you had no idea who had done what but
had only a vague sense that this or that "had transpired" with this or that
result "having ensued." What is worse, the report was replete with dishonest
(and obviously deliberate) renderings of key facts and with conclusions that
could only be reached by the most absurd disregard of logic imaginable. I
remember thinking to myself: "this is the suit-and-tie version of a stick-up
in some back alley." And the case worked out true to form, with what must have
appeared to be surreal results from the viewpoint of the midwest firm's
executive management. Six lawyers and four paralegals were assigned to the
case. Thousands of boxes of documents were assembled with lawyers and
paralegals being tasked to go through each document mindlessly summarizing it
on a "digest sheet," with the results ultimately to be compiled into an
omnibus analysis report that could in turn be used by competing experts to
attempt to rebut the absurdities of the original report. Thousands of hours of
billable time racked up and this process was maybe 10 or 15% done when I
decided to do a very careful analysis of a relatively few key documents only,
to put the story in a context that readily demonstrated the sham nature of the
"delay damages report," to summarize everything in a 50-page write-up, and to
give that to the partner in charge. Within a short time, the executive
management of our client used that write-up to meet face-to-face with their
counterpart executives on the other side and the case quickly settled for a
very modest money payment. What a mess, I thought at the time, and all from a
phony expert report.

As the facts are emerging in Oracle's attack upon Google, it is clear that
there are many complex elements here by which Android might ultimately be
found to infringe upon Java in this or that respect but it is equally clear
that, _when it is all put in context_ , the damage claims being asserted by
Oracle are about as phony as one could imagine. This Groklaw piece does a
splendid job of picking the high points from the critique that Google's
lawyers have put together to decimate the report of Oracle's key damages
expert. All I could think of as I read this was how this sort of phony "expert
analysis" remains as prevalent as it did back in my early days of lawyering
(over 30 years ago) - different legal context, different facts, same exact
techniques, same sort of hired guns. It is enough to give anyone a very jaded
view of law and how its outworkings can harm people. Here, Google is more than
capable of being able to afford to hire the best in order to defend itself.
But what does an average person or company do when faced with such situations?
It is truly dismaying to contemplate.

Oracle will of course fight to resist Google's challenges to its damages
claims and it will be up to the judge to decide. But the judge recently warned
Oracle that this cycle will likely be its last chance to fix the problems with
its expert's report (see <http://news.ycombinator.com/item?id=3500459> for a
detailed analysis of this) and so this will soon reach a decisive point. The
result will be, I believe, that Oracle will get its day in court but will only
be able to proceed with a much-stripped-down version of its claims - something
that might hurt Google a bit financially but will pose no real threat to the
Android platform as a whole and will amount in time to nothing more than a
blip on the radar.

~~~
meow
Once this case ends - one way or the other - will Oracle be able to sue Google
again by picking up some more patents (from its 500 odd java patents) ? Or is
this case the end of suing based on Java related patents...

~~~
pja
IIRC the judge in this case required Oracle to pick their best patents out of
their portfolio and to sue on those alone. They don't get to go back and trawl
through the rest of them hoping to get lucky a second (or third, or fourth)
time.

------
linker3000
"The value of this case keeps getting smaller and smaller"

But the lawyers fees are still getting bigger and bigger.

Plus ça change.

~~~
akashshah
Wouldn't both companies have in house lawyers fighting the case? In which case
the lawyer fees would be just their salaries?

~~~
Jyaif
Google uses Keker & Van Nest (it's in the article).

------
_delirium
Fwiw, this is the now-dropped claim, which is claim #14 from a patent with the
ultra-generic title, "Controlling access to a resource":

 _A computer-readable medium bearing instructions for providing security, the
instructions including instructions for performing the steps of: detecting
when a request for an action is made by a principal; determining whether said
action is authorized based on an association between permissions and a
plurality of routines in a calling hierarchy associated with said principal;
wherein each routine of said plurality of routines is associated with a class;
and wherein said association between permissions and said plurality of
routines is based on a second association between classes and protection
domains._

In other words, each user is associated with a class, which contains routines,
and each class is associated with a protection domain.

------
krakensden
This almost looks like Oracle's lawyers didn't think they'd have to go to
court.

------
Tyrannosaurs
Is this really surprising?

Oracle were always going to massively inflate the amount to start with (forget
that it was an expert report, we all know that you can pick and choose your
experts), that's basic negotiating tactics. The bigger the number you can get
into people's heads, the more reasonable a big number (even if it's not as
big) seems.

I have no statistics but I'd be pretty surprised if this wasn't a pattern you
saw in pretty much all cases where damages are being sought.

------
cenuij
I wonder if the paid Microsoft shill[1] Florian Mueller will comment on this?
Likely not.

[1]
[https://plus.google.com/109412257237874861202/posts/ACM7DmpF...](https://plus.google.com/109412257237874861202/posts/ACM7DmpFVkF)

~~~
tzs
Do you have any support for your claim? The link you gave does not support
your claim.

Here's a clue: paid shills generally do not announce that they are being paid
by the entity they are allegedly shilling for.

All the linked article is reporting is that an analyst has taken a job to
write a report--which is known because the analyst posted about it on his
blog, naming the client and what the report is about, and stated that he would
post his findings.

Under your ridiculous apparent definition of "shill", _EVERYONE_ who does any
research for pay is a shill for whoever is paying them.

edit: wow. Downvoted for calling out an unsupported ad hominem.

~~~
afsina
My theory is, he is a shill, but not for Microsoft. That is just how he earns
money.

~~~
thomholwerda
He is being paid by Microsoft. He wrote a Microsoft-sponsored report on FRAND
patents... Quite coincidentally the very focus of the current strategy by
Apple-Microsoft.

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

------
ypcx
You can't out-google Google, even if you see the future. Or so they learned.

