It was the clearest indication yet of just exactly where this trial is headed. During the day's second recess, Google counsel Robert Van Nest huddled with Oracle attorneys David Boies and Michael Jacobs, all three talking in the middle of the courtroom. Brief snippets of conversation echoed; "that one's done," "he already said he was going to grant a JMOL," "look, how much is this going to cost?" After a day of dense testimony, heavy with phrases like current pool indices and byte offsets, it's apparent that both sides are trying to wind the Oracle vs. Google trial down as efficiently as possible.
The day started with a surprise: Judge Alsup granted Oracle's request for a judgement as a matter of law (JMOL), and ruled that Google had indeed infringed the company's copyrights by using source code from eight different Java files in Android. The decision went against the jury's own findings earlier this week, but Alsup stated that given the legal instructions in the case there was "only one possible answer." This additional count joins the nine lines of copied rangeCheck code, the only other instance of copyright infringement Google currently faces. However, Oracle then indicated it was not prepared to accept statutory damages — the company would be awarded a maximum of just $150,000 per count — and would instead be going after "infringer's profits": a share of Google's Android revenue.
The judge called it "the height of ridiculousness"
Alsup called it "the height of ridiculousness" for Oracle to expect hundreds of millions of dollars based on the nine lines of rangeCheck code, particularly since the company hasn't provided any evidence tying specific damages to the use of the code. Calling it a "weak case," he nevertheless agreed that Oracle had the right to bring it before the jury in the third stage of the trial, hoping to avoid any legal maneuvering whereby Oracle could later claim on appeal it hadn't been allowed to pursue all options.
Boies put it on the judge's shoulders
However, Jacobs himself brought up the idea of removing the damages phase from the trial a few hours later, informing the court that he had reached an agreement with Van Nest to move any willfulness discussion into the patent phase. Judge Alsup continued to bristle at Oracle's rejection of statutory damages, but David Boies stepped in, putting the burden of the argument square on the judge's own shoulders. "The court may say that given the relative contribution of these items there is an inability for us to seek infringer's profits," he said, in which case there wouldn't be a need for a trial on the topic at all. "But if the scales would fall from the court's eyes," Boies continued, then Oracle could make its case.
Alsup deferred to the attorneys to present him with a signed document detailing how they planned to proceed. Immediately thereafter both sides met for their courtroom huddle, and while the day ended without immediate resolution — and with the damages phase still expected to start sometime next week — the air has largely gone out of the courtroom. There's little left that's immediately at stake for either party, with Oracle unlikely to receive a meaningful share of Android profits, and even patent damages paling in comparison to what the company had hoped to reap from Android's SSO infringement. The patent phase is expected to end as soon as Monday, and we'll be there to bring you the latest.