While it may not have had the immediate implications of Judge Alsup rejecting Oracle's request for a fair use ruling, the patent portion of Oracle vs. Google wound on today. Andy Rubin made two appearances in the courtroom, once on the stand and another time via video playback — but the two Rubins didn't entirely agree with one another. As he did yesterday, Oracle counsel Michael Jacobs focused on a number of emails that contained references to Sun-owned patents. Rubin testified that despite the emails, he never asked anyone on the Android team to investigate Sun's patent portfolio to ensure no infringement was occurring. In fact, Rubin echoed earlier testimony, stating that the emails referred to the patent implications of a possible partnership between Sun and Google that never came to fruition.
The video didn't match the in-person testimony
The head of the Android team also testified that he had never been notified of any specific patent infringement until a legal meeting in July of 2010. When confronted with a 2007 email in which he had written that Google "negotiated 9 months with Sun and decided to walk away after they threatened to sue us over patent violations," Rubin said that the referenced action was in connection with Google's server and data center operations, and not related to Android at all. However, when asked about the email during his deposition last year, Rubin made no mention of Google's non-Android operations, instead stating that Sun had threatened the lawsuit "to bring the partnership back together." According to Rubin, the collaboration between the companies could not be reached because Google was unwilling to pay the $100 million per year — plus search revenue sharing — that was being asked for.
Refuting Schwartz's testimony may have hurt Oracle
Former Sun CEO Jonathan Schwartz caused a stir earlier in the trial when he testified that it had been Sun's policy to "build value around" Android rather than litigate. Though we've moved past the copyright phase, Oracle called former Sun and Oracle SVP Brian Sutphin to dispute the testimony. Schwartz's claims aren't technically relevant to this trial stage, being better suited for the subsequent damages portion of the trial. Oracle cited a scheduling issue in bringing Sutphin forward, but as pointed out by Judge Alsup, it seemed likely that the company was concerned Schwartz's testimony might play into the jury's decision for patent infringement. Sutphin confirm that there was no such official policy from Sun at the time, nor did the company feel it lacked grounds to pursue legal action against Google. His appearance allowed Google counsel Robert Van Nest the opportunity to introduce Sun's 10-K filing from 2008, however, which noted that the company includes CEO blog posts as part of the investor relations section of its website, so it's questionable whether the move helped or hurt Oracle overall.
Oracle rounded out its day with technical testimony, delving into the details of the two patents in play — and Android's allegedly-infringing technology — by calling Google's Andy McFadden and bringing back Dr. John Mitchell. Both experts offered explanations of the dexopt program that's accused of infringing the claims in the '104 patent, while Mitchell provided a brief look at Android's DX compiler, which Oracle points to for infringement of the '520 patent claims. As we expected from the opening statements, Google is employing nuanced — one could say almost semantic — arguments, seemingly hinging things on the precise definition of things like symbolic matching. However, given the specificity of the patent language involved, it could be enough to let Mountain View off the hook. We'll know more tomorrow when the patent phase continues.