[Update] I've added a couple of paragraphs at the end on Judge Alsup's less than lukewarm reaction. [Update]
Yesterday Judge Alsup entered an order setting April 16, 2012 as the definitive trial date for Oracle v. Google. Since then, there's been some more activity in that litigation, and today, Google's lead counsel, Robert van Nest (who also represents HTC against Apple), asked the court for a "continuance" (postponement).
Mr. van Nest argues that he and "several other members of Google's trial team" would otherwise miss a portion of the scheduled eight-week trial. He has a trial in the Eastern District of Texas that will start on April 9 and may take until April 20. On June 11, he is set for another trial in the Northern District of California (before Judge Koh, the judge who is also presiding over Apple v. Samsung). There will be a bench trial in that dispute on June 29. Ideally, Mr. van Nest would like the court to postpone this whole trial until after that date. Alternatively, he proposes a postponement by two weeks (i.e., until April 30) because it "would allow [him] to return from the [Texas trial] in time to try as many phases of this case as [he] can before beginning [his] trial before Judge Koh".
Unless he plans to ride back home from Texas to San Francisco on a bicycle, it's not clear why a trial that is scheduled to end on April 20 would prevent him from appearing at the Oracle v. Google trial for another ten days. Also, he argues that any delay "would not prejudice Oracle", which "has never sought a preliminary injunction to remedy any alleged 'irreparable harm' allegedly caused by Android". That's a very weak argument. There are good reasons for which most patent plaintiffs don't request preliminary injunctions even if there is irreparable harm.
The letter points out that the Texas trial was stated in Google's Joint Pretrial Conference Statement in December and again in a letter Mr. van Nest sent the court on February 24, 2012. Also, at a hearing on December 21 he stressed his scheduling conflicts, and the judge said that he would try to help him out.
If Judge Alsup considered all of that input when setting the April 16 trial date, he won't be swayed by this letter. But if there was an oversight on his part, then I guess he will reschedule. One factor that works against Google here is that Judge Alsup apparently told the parties' lawyers on more than one occasion that they should keep themselves available from April 16 until late June. Mr. van Nest's aforementioned February 24 letter was a reaction to that request by the judge, reducing the likelihood of Judge Alsup now having been oblivious of that scheduling conflict.
On a related note, Judge Alsup gave instructions to the court-appointed damages expert, Dr. James Kearl, earlier today, telling him to "calculate patent damages only for the '104 and '520 patents". It may not be likely that Oracle will be able to change, between now and the trial, the USPTO's mind on any of the three patents it meant to withdraw at the start of the trial only if they still stand rejected at the time. But Oracle did reserve the right to assert any such patents in that case. Maybe the judge just doesn't want the court expert to spend time on damages related to those three patents at this stage but will still ask him to supplement his report if the situation changes before the start of trial. Damages will be discussed only during the third trial phase, so there would still be time for such an amendment and any related depositions.
[Update] Judge Alsup responded later the same day. While he formally allows Google to bring a motion requesting postponement, he discourages this effort by saying upfront that "the prospects for [the motion succeeding] are not great". It appears that Judge Alsup can solve the scheduling problem of Google's lead counsel through coordination with other judges. One of the two cases creating a conflict for Mr. van Nest takes place in the same district, and Judge Alsup believes that "Judge Koh will accommodate counsel once [the Oracle-Google] trial is underway". Between Google's letter and Judge Alsup's reply, the other trial, which will take place in Texas, was moved up. It is now set to start on April 2 instead of April 9. Judge Alsup says this was done "to take some pressure off of counsel", which I interpret as this rescheduling being a result of coordination between the two district judges.
Furthermore, Judge Alsup points to congestion arising on his court's calendar due to a major gang murder trial, which in turn means that Oracle v. Google can go to trial starting April 16, 2012 or would otherwise slip into 2013. This now-or-next-year alternative would further up the ante for any Google motion advocating postponement. Under these circumstances I guess Google's counsel will realize there no longer is reason for concern on his part, and he will probably refrain from filing a motion for which he's run out of arguments now. [/Update]
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