Judge William Alsup, the federal judge presiding over Oracle's intellectual property infringement lawsuit against Google, just entered an order that envisions, if all goes according to plan, the trial in this case to begin in mid-April without a need for Oracle to put its patent infringement claims on the back burner.
Oracle had surprisingly offered to focus its case, for the near term, on its copyright infringement claims so as to enable a trial to take place within a matter of months. Google, which previously pushed rather hard for a stay of Oracle's patent claims, considered Oracle's ideas to be off-topic.
Judge Alsup rejected Oracle's proposal as a "piecemeal approach" and a "luxury" the court's scarce resources don't allow. But what he proposes -- subject to Oracle accepting the terms definitively by Tuesday ("please file either a clear 'yes' or a clear 'no.'") -- is in some ways (but not in all respects) even more favorable to Oracle's interest in a near-term trial than Oracle's own proposals.
Oracle's third proposal was to take both the copyright and patent infringement claims to trial this spring, and this appears to be a possibility now. But Oracle wanted to buy this acceleration by waiving its right to present a third damages report after the two previous ones were rejected in part. Judge Alsup, however, wants to resolve the damages issue sooner rather than later and presumably believes that Oracle is going to present a new damages report as soon as humanly possible.
The judge makes it clear at the beginning of today's order that this case merely got delayed because he had also been "assigned to the massive MS-13 gang prosecution, which has resulted in four lengthy trials". Other than that resource conflict, he believes the case can go ahead quickly provided that the damages issue is resolved (and, which he doesn't mention because he doesn't have to, provided that Google's petition to the Federal Circuit is adjudicated soon, which Oracle believes will happen by March).
I think Oracle still did the right thing by making its proposal for a streamlining of the case. If nothing else, it at least showed to the judge that Oracle is very serious about its pressing need for this case to be resolved soon. If Oracle hadn't demonstrated this with an action that spoke louder than words (by action I mean its formal offer to have the patent infringement claims stayed or dismissed without prejudice, and its offer to waive its right to revise its damages report), I'm not sure Judge Alsup would have offered the same way forward.
Google argued strongly against the possibility of Oracle being allowed a third try to present a damages report that would be acceptable in its entirety. Google's two primary arguments boiled down to a possible delay, which Oracle described as "no principled objection" given Google's history of trying to delay the case. In its most recent pleading, Oracle wrote that "Google's strategy is delay". The judge knows about that. The other argument, which the judge is fairly sympathetic to, comes down to costs. Having yet another damages report proposed, with a need for additional analysis, depositions and possibly another motion to throw out parts of it, can result in incremental costs that Google would have to bear only because Oracle didn't, in the judge's opinion, comply with the instructions Judge Alsup provided with a view to the second damages report. The judge therefore wants Oracle to commit to pick up all of the related costs, including Google's legal fees attributable to this additional effort.
The judge also reserves the right, regardless of the acceptability of a possible third damages report, to preclude Oracle's damages expert from testifying to the jury, simply based on his "track record of rejected methodologies". The decision on this will be made after the two liability trials (phase 1 on patents, phase 2 on copyright) and before the damages trial (phase 3). At that stage, Oracle won't be allowed to replace its damages expert, Dr. Cockburn.
My guess is that Oracle will accept this offer because other than costs, which are going to be sizable in absolute numbers but small compared to what's at stake, there's no colorable drawback that Judge Alsup's proposal has over Oracle's own proposals. Oracle might be concerned about Google possibly seeking to delay the process surrounding the third damages report, but if Google did that, the judge would probably take measures to defend and uphold his envisioned schedule.
Oracle could also reject this offer. In that case, Oracle will be allowed to present to the jury only those parts of its second damages report that the judge approved. It might hope that dropping the damages part is the best way to streamline the case and get a near-term trial.
Today's order indicates that if everything goes according to plan, a mid-April trial is possible, but otherwise it might be postponed until the last four months of the year.
Like I said further above, I think it helped Oracle to demonstrate a genuine commitment to speed and focus. I still find it hard to believe that this case will finally go to trial in about three months. Whenever the trial appeared to be near, it turned out to be much further away than it seemed. At any rate, with today's order, Judge Alsup sent out a clear message that he would like to find a way to resolve this case -- all parts of it, not just the copyright claims -- in the not too distant future.
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