In response to an order by Judge William Alsup, Oracle and Google filed documents on Tuesday to discuss the possibility of Oracle being allowed to make a third attempt to provide a damages report, after the court ordered an overhaul of the original report and again threw out essential parts of the revised one. On this occasion, Oracle made a proposal that is, for anyone who's been watching this case, quite surprising, if not revolutionary: Oracle said that it would rather see the copyright part of the case go to trial at the earliest opportunity than delay things by presenting a third damages calculation. Oracle proposed to put the patent part of the case on the back burner, though it had opposed on several occasions Google's proposals to stay its patent infringement claims pending reexamination of most of the patents-in-suit. But without an accelerated path to trial, Oracle said it would fight hard, including a possible appeal to the Federal Circuit, for its original damages claims.
Yesterday (Thursday, January 19, 2012), Oracle and Google replied to each other's pleading. The original deadline would have been today (Friday), but Judge Alsup told the parties that it would help the court to receive those answers a day earlier.
I'm somewhat disappointed that Google's reply doesn't really say much about Oracle's intriguing proposals. For the most part, Google focuses on why Oracle should not be allowed to present another damages report. Toward the end of the six-page document, Google then says Oracle's case management proposals were "unsolicited" and treats as if they were just a nuisance, a digression into off-topic territory, a waste of time.
It would obviously be difficult for Google to argue against a stay of the patent claims, since Google itself advocated it repeatedly, even very recently. And it wouldn't be necessary to reiterate its support of that idea. But Google could have said on which coniditions it supports Google's proposed path to a near-term trial. For example, I thought Google would argue that if Oracle's second proposal (dismissal of the patent claims) was adopted, it believes those claims should be adopted with, not (as Oracle proposes) without prejudice.
Instead, Google asserts that "the Court did not ask the parties for further comment on those issues" (relating to the trial plan). That statement displays the pettiness and narrow-mindedness of some (fortunately not all) low-grade accountants. The very order Oracle responded to on Tuesday linked to the overall scheduling issueds of the court both the possibility of a third damages report as well as the presentation of the Lindholm email. Judge Alsup has generally been connecting substantive, case management, and scheduling issues for quite some time.
While I've never supported the totality of Oracle's damages theories, my overall impression is that there is a genuine dispute between Oracle and Google, and a reasonable disagreement between Oracle and the judge, concerning the admissibility of certain types of damages claims. Oracle's proposals would make sure that the question of a third report, or of the admissibility of the second one, won't come up anytime soon, if ever. That's the bigger picture and, in my view, a pragmatic, results-oriented approach.
One can blame Oracle for having presented two damages reports that the judge didn't want to accept as filed. But again, there are issues on which I believe reasonable people can disagree. By contrast, Google made five unsuccessful attempts to have the district court throw out the Lindholm email, a sixth failed attempt in the form of a motion in limine (it would have precluded Oracle from using the Lindhom email), and it will very likely be turned down for a seventh time when the Federal Circuit rules on Google's mandamus petition. All of that effort was and is made for an email that every lawyer I talked to clearly viewed as business correspondence, not privileged attorney-client correspondence.
It will be interesting to see how the judge proceeds. I believe he wants an efficient way forward for the case, and the question of whether a solution was solicited or unsolicited may not matter as much to him as it appears to do to Google's lawyers.
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