On Tuesday afternoon local time, Judge William H. Alsup of the United States District Court for the Northern District of California issued a third case management order in the remand proceedings of the Oracle v. Google Android-Java copyright litigation. The most important part relates to the retrial date.
The final pretrial conference is firmly set for April 27, 2016. However, for the retrial itself, "[t]here is no date in 2016 that the Court could set for Oracle v. Google as a 'firm' trial date." The retrial "is [merely] tentatively set for May 9, subject to the possibility that two other cases with priority also set on that day will settle or plead out." The order then explains that "the Court tentatively expects to bring the Oracle v. Google case to trial as soon as the trials previously set for May 9 are completed or vacated due to settlements or pleas."
In practical terms, this means:
May 9 is the earliest possibility.
It will only be May 9 if parties to other cases do things they can't be forced to do (settle, withdraw) or if the other cases are resolved ahead of trial (summary judgment).
If the May 9 trials don't take too long, Oracle v. Google may start as soon as those other trials are over.
Theoretically, despite the court's "tentative" plans, this could slip into 2017 for no fault of Oracle or Google.
Another potential uncertainty here (not mentioned in the order) is that there could be delays due to issues with expert reports or as a result of interlocutory appeals or mandamus petitions. There were some expert report do-overs in the original proceedings; there was a mandamus petition by Google (which failed, but it took time) regarding one piece of evidence. I do see the potential for some of that on remand as well. I predict a huge fight especially over jury instructions and how to interpret the Federal Circuit's guidance regarding "fair use." I also see the potential for a pretrial involvement of the appeals court in connection with the court-appointed expert (though I still trust that a judge who even express concern in 2012 about the potential influence of bloggers on court decisions sets a rather high standard for court-appointed experts, a standard that Dr. Kearl cannot possibly meet anymore).
All things considered, I'll mark May 9 on my calendar but with lots of question marks (which, come May, may or may not go away).
The only smartphone patent dispute Google still has to worry about is this case, which is, by now, a copyright-only case. Apple's "thermonuclear war" and Microsoft's five-year effort to force Motorola into an Android patent license have ended in second-class settlements (withdrawals without license agreements). The only two resolutions I can imagine for Oracle v. Google are a license-based partnership between the parties or, maybe, a strategic acquisition of Java by Google (I've seen various tweets in recent weeks and months that suggested this, and while Oracle is more of a buyer than seller of companies, Google has almost three times Oracle's market cap).
The fact that a copyright case has eclipsed Google's patent cases is not because copyright is generally stronger than patents. It's because this case here is about literal copying (a conceded fact in this case), not more or less flimsy allegations of copying as in those patent cases.
Finally, a recommendation for those interested in "fair use" cases: an article by IP litigator Mike Keyes on the "Dancing Baby" case and why it has no bearing on Oracle v. Google.
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