Judge William H. Alsup of the United States District Court for the Northern District of California has just entered a case management and mediation order in the high-profile copyright litigation between Oracle, the Java right holder, and Google, which has been using Java in Android for about eight years without a license.
The trial date will be set at a later time and most likely be March 28, 2016 or September 12, 2016, but it could also be anytime in between. The parties had proposed dates in the spring of 2016.
The court would still like to avoid the need for a trial, which is understandable, and Judge Alsup has referred the parties to mediation before Magistrate Judge Paul S. Grewal, who already tried unsuccessfully (because of the circumstances) in 2011 to broker a settlement but concluded that this was one of those cases that just had to go to trial. I have seen media reports according to which both parties' counsel expressed skepticism about the fruitfulness of another near-term mediation effort, which didn't dissuade Judge Alsup from ordering the parties to meet at any rate. He can order them to meet, but he cannot order them to agree on any particular terms. It would be the biggest surprise for me in more than five years of smartphone patent litigation blogging if this mediation succeeded, and someone should propose Judge Grewal for the Nobel Peace Prize in that event (he'd deserve it more than some other winners in recent decades).
Oracle is allowed to bring a motion to supplement its complaint. Even Google doesn't deny that Oracle has the right to supplement its complaint so as to reflect what happened in all those years since the first trial. There is a disagreement, however, on what constitutes a supplemental complaint and on what would be an amended complaint. So we'll see some argument in the weeks ahead.
A motions process will also start now with respect to Google's position that Oracle should not be allowed to make a willfulness argument before the jury.
It's predictable that motion practice will soon also be needed with respect to the damages expert witness from the first trial, Dr. Kearl. Oracle says (and I think it's very obvious) that someone who took on work as an expert witness for a Google Android partner has a conflict of interests. Court-appointed expert witnesses must be absolutely neutral, so this should be a no-brainer. In all likelihood Dr. Kearl won't appear again, and while this is absolutely speculative (I have no information on anyone's plans other than what the public filing says), I believe a decision to let Dr. Kearl appear again, despite a conflict of interest that is beyond all doubt, might trigger an interlocutory appeal.
For now, however, Dr. Kearl still appears in the case management order in paragraph 8, which refers to the expert report on damages being furnished within 21 calender days of the last party expert report on damages.
Finally, the court tentatively (the order says "likely") plans to allow Google to still raise its equitable defenses at the trial. This could help Google and harm Oracle because the jury might confuse some of the argument and testimony relating to equitable defenses as having a bearing, even if only psychologically, on "fair use."
On another note, The Recorder reports (for subscribers only) that lawyers from Morrison & Foerster and Boies, Schiller & Flexner are still working for Oracle on this matter, but Orrick, Herrington & Sutcliffe, whose appellate team (led by Joshua Rosenkranz) had achieved the reversal of the non-copyrightable ruling as well as favorable guidance on what is or is not fair use, now has the lead. The two most recent filings by Oracle had been signed by Orrick's Annette Hurst, a top-notch copyright expert. The Recorder also says she has a key role but mentions (in the first place) Peter Bicks, a commercial litigation attorney who has apparently had spectacular successes at jury trials in many different parts of the United States. Based on Mr. Bicks's background I now venture to guess that he will probably be the lead trial counsel.
Here's the case management order:
15-07-31 Oracle v. Google Case Management and Mediation Order by Florian Mueller
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