Things just took an interesting turn in the courtroom for Oracle's copyright infringement case against Google: a juror has asked how the jury should proceed if a unanimous conclusion can't be reached and one individual won't change their stance. Judge Alsup was quick to point out that the note wasn't from the foreperson, and wasn't an official statement that the jury was tied up. In speaking with counsel from both Oracle and Google, Alsup floated the possibility that if the jury does indeed formally state it is deadlocked, the court could "take what we can get and move on to the patent phase"; essentially taking the findings the jury has already come up with, and leaving the unresolved issues on the table for the moment.

A judicial pep talk

Alsup brought the rather exhausted-looking jury back into the courtroom for what essentially amounted to a pep talk, telling them that he appreciated their hard work, and that it was natural for jurors to feel unsettled when sorting through hundreds of exhibits. Judge Alsup did not press them on the status of the deliberations, however, instead excusing them for the day with a promise for things to continue tomorrow. The technical and legal issues in this case are far from simple, so in some ways it seems perfectly natural that a jury of twelve individuals — with different perspectives and technical competency levels — will disagree on the interpretation of important factual evidence and legal points. And it's always possible that strong personalities are in play as well.

The jury's early questions inferred they thought Google infringed

This particular question was the eighth asked over the last four days of deliberation, with many of the juror's notes focusing on the nuances of fair use and the issue of de minimis copying (basically, when a certain amount of copying is so small as to not constitute infringement). The fair use questions left the strong impression that the jury had already found that Google had infringed the copyrights for the 37 Java APIs — in the jury verdict form, the concept is only introduced after infringement is found — and the de minimis query seemed to indicate the jury had methodically moved along to the third of the four verdict form sections it has to complete. Earlier this afternoon, however, a seventh question arose, again pertaining to fair use, and it became clear things were still heavily in flux.

Moving forward to the patent phase without reaching a unanimous verdict as Judge Alsup proposed would introduce a new level of uncertainty into the proceedings, even opening up the possibility that the copyright phase may have to be retried at a later date. Obviously, neither party wants to start from scratch with a new copyright trial, but we're sure Oracle would prefer that over a finding from this jury that Google doesn't infringe at all. Google counsel Robert Van Nest made it clear that he felt divvying up the case would cause irreparable harm. Speaking for Oracle, Michael Jacobs stated that his team wanted further time to consider the proposal. We'll know more tomorrow.

Matt Macari contributed to this report.