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Oracle v. Google: "the value of this case keeps getting smaller and smaller" (groklaw.net)
133 points by grellas on Feb 19, 2012 | hide | past | web | favorite | 23 comments

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.

Thanks so much for the time you put into your posts. They always teach me something.

The overall theme brought this to mind:

"If you give me six lines <of code> written by the hand of the most honest of men, I will find something in them which will hang him." -- Cardinal Richelieu

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...

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.

To me this seems like a problem of the adversarial system, where the two sides hire and pay their own experts. I know of course that in a inquisitorial system there is also phony expertise presented, but (as I understand it) there is less incentive to side with either party.

What do you think about (IIRC) the system in the UK where the loser pays the lawyer costs of both sides? Do you think the US could ever have this type of procedures established?

It seems to me that it would primarily have the effect of preventing sham suits like this one. The net effect being that courts could actually deal with important issues rather than dealing with suits designed primarily to harass.

I have mixed feelings about a loser-pays system and have articulated the reasons why I believe that such a system can sometimes work undue hardships on average people who go to court to try to obtain redress (see http://news.ycombinator.com/item?id=1792353). While such a system would undoubtedly serve to deter certain forms of abusive litigation, I think its benefits would be outweighed by the detriments it might bring.

As to the chances of its ever being adopted in the U.S., I think these are basically nil. The U.S. departed from the UK on this issue dating back to the formation of the country and both judges and state legislatures (which now fashion these rules) are very committed to the current rules. Among other things, those rules are seen as helping plaintiffs (such as consumers and personal injury victims) and those who fashion such rules are not prone to disturb the existing system because of this. Moreover, in cases where legislatures do consciously want to tip the balance, they enact special statutes that allow for fee-shifting in favor of plaintiffs (e.g., in certain civil rights cases where a plaintiff can get a fee award as prevailing party even though traditional rules would require such a party to bear its own fees). With sentiments (and prejudices) being so heavily weighted toward plaintiffs in general, I don't see any movement whatever toward a loser-pays system even though this might help lessen frivolous litigation (I do believe that an occasional U.S. state has adopted such rules but this is a rare exception).

By the way, I don't see the Oracle case as frivolous. It is, in my view, grossly overstated in its damage claims but it may be that Android is infringing certain of the patents and that Oracle may be entitled to some damages. I say this even though I am not sympathetically aligned with Oracle's case and believe it was a mistake to bring it. As to the final outcome, only time will tell.

As always, thank you for your detailed comments. The question I was trying to get out was: Is there a way to help curb the frivolous lawsuits so prevalent in the US today? You mentioned special statutes to allow fee recovery in some cases. Do these rules actually help in the case of Joe Blow being sued by Megacorp?

For myself, I would almost certainly rollover at the first whiff of a lawsuit against me personally because I have neither the time nor money to fight it. BigCorp vs BigCorp is far less interesting to me than MegaCorp vs LittleGuy, because I certainly qualify as LittleGuy.

Isn't the threat of a permanent injunction (which Oracle is apparently askings for) a far greater threat than the money damages? Oracles's damages report getting stripped down does not seem to reduce the threat to the Android platform as a whole much at all, though it does reduce the short-term financial damage to Google.

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.

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

But the lawyers fees are still getting bigger and bigger.

Plus ça change.

There are two reasons the value of the case gets smaller and smaller.

One is that the large assigned value at the beginning was a lie. When truth appears lies evaporate. (Usually).

The other is that Google's lawyers did their extremely difficult job--using their technical smiles they have methodically pruned an overgrown oak into a bonsai.

Look at both sides of the equation. What was paid? What is the value of what was bought?

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

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

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

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.

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

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

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.

I think the accusation of shilling isn't as easily dismissed as you seem to think.

Muller is notorious for taking anti-Google positions, and his anti-Google stance appears to be so extreme it affects his judgement.

Meanwhile, he is getting paid by Microsoft unknown amounts of money for unknown work - it's not just a single report. To quote:

He says that he and Microsoft have worked together more than once, but that because of a confidentiality agreement with the company, he can’t elaborate on the details of that relationship


A further quote from that article is interesting:

Mueller may have perfectly good reasons to consistently zing Android—he’s far from the only pundit that has consistently strong views about a particular company. But given his financial relationship with that company’s archenemy—and the fact that Microsoft has a history of “hiring” outside experts to attack the competition—it’s hard to regard him as a disinterested party. The time has come for Mueller to amend the conflict of interest disclaimer on his blog and for the media to cease citing him as an impartial authority.

To me Mueller has an obvious bias against Google and Android and many in the FOSS community have called him out for behaving like a shill.

This post has more on the story and Mueller has not denied it's veracity:


"He says that he and Microsoft have worked together more than once, but that because of a confidentiality agreement with the company, he can’t elaborate on the details of that relationship."

Mueller buries his bias and sensationalism amongst otherwise insightful analysis. He also offers no opportunity for rebuttal on his blog (comments are always disabled).

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

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.


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

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