Yesterday Oracle counsel David Boies made a spur-of-the-moment suggestion that would prevent the jury from handling damages for Google's copyright infringement in Android, and keep Oracle's hopes for a substantive payout alive in the process. This morning both parties — and Judge William Alsup — agreed to the proposition. Under the agreement, any and all damages related to the two copyright infringement counts the search giant faces — at the moment, just for nine lines of rangeCheck code and eight decompiled Java files — will be delayed until Judge Alsup rules on the vital question of whether the structure, sequence, and organization (SSO) of 37 Java APIs are covered under current copyright law. Operating under the assumption that they were, the jury found Google had infringed with its use of the APIs, though the jury hung on whether it was covered under fair use.
Oracle won't be left out in the cold
What happens then? There are two different paths. If Alsup finds that the SSO is copyrightable, the two minor infringement counts will be bundled along with the SSO charge to be handled in any new trial or appeal. If he rules against Oracle on this point, however, Alsup will simply award Oracle statutory damages — a maximum of $150,000 for each of the two counts. That doesn't leave Oracle out in the cold, though; Alsup's ruling on SSO copyrightability will no doubt be appealed, and should it be overturned and the case sent down to be tried again, Oracle will have the opportunity to re-open the two minor copyright counts to go after larger damages.
It's good for Google as well
While it may seem that Oracle got the better end of the bargain here, Google has an incentive to prevent the trial from moving into its damages phase as well. Oracle has already stated that it planned to call Eric Schmidt and Larry Page to the stand again, with the expressed intent of covering Android financial numbers — information Google would no doubt prefer to keep confidential.
The other hanging chad is Google's motion for a mistrial, which would result in both the SSO infringement and the respective fair use issue handled together in a new trial. Oracle, obviously, would like to take the infringement verdict it's already won and simply retry the fair use issue. Both sides will have the opportunity to argue for and against Google's motion after the SSO decision comes down.
As for the patent phase, the jury started deliberations yesterday, but has yet to send out any notes to the court. If they do find that Google infringed upon Oracle's patents, the trial will still proceed into its third phase to determine any related damages. Should they find against Oracle, however, the jury would be dismissed immediately, with only procedural issues left on the table.
Matt Macari contributed to this report.