On Wednesday, a motion hearing was held in the San Francisco courthouse of the United States District Court for the Northern District of California to discuss Oracle's motion to disqualify the court-appointed damages expert, Dr. James Kearl, who since his original appointment in this case has effectively defended Google's interests in connection with an Apple v. Samsung case.
Having just read this Courthouse News report on the hearing, I can't help but conclude that Oracle's problem in this case is not limited to the damages expert. There appears to be a bigger problem: I've been watching the remand proceedings for a while and feel that Judge Alsup is not fair. Instead of recognizing that the only reason this case hasn't been resolved yet is a decision he made on (non-)copyrightability, which the Federal Circuit found completely wrong and the Supreme Court declined to reinstate, and now doing his best to ensure that justice finally be served, Courthouse News reports that Judge Alsup said the case would be delayed by at least 18 months, or possibly until 2019 or 2020, if he granted Oracle's motion. It's obvious that Google would love this delay to happen, and for Oracle it would be very bad.
He says that he'd only appoint a new damages expert if necessary but makes it sound like that will probably happen. That is rather different from how other big commercial cases are handled in the U.S., where court-appointed damages experts are few and far between.
It would only be human if Judge Alsup hated Oracle (I don't know if he does; just saying it would be understandable) for having defeated his non-copyrightability decision on appeal. He's been described as an ego-driven judge, and a journalist said in 2012 that he appeared to be the smartest person in the room (at the 2012 trial), which contrasts with the circuit judges' remarks at the December 2013 appellate hearing: they found him "confused" and incorrectly conflating copyrightability and "fair use" aspects. The written opinion was even tougher. It was totally damning for the district judge.
Years ago I had proactively disclosed a consulting relationship with Oracle. Let me state this very clearly: there is no such relationship at this time and I have no reason to assume that there would ever be one again. Not with Oracle, not with any Oracle partner, not with Oracle's counsel, neither directly nor indirectly. I'll be happy to see many people at Oracle and its law firms download my apps next year, but I doubt Oracle and its counsel will do a lot of in-app purchasing of boosters and exclusive game content :-) I wanted to clarify this so it won't look like I was criticizing the judge to do Oracle a favor or, worse, that Judge Alsup would attribute my independent opinion (I've never discussed the damages expert or the way Judge Alsup runs this show with anyone even close to Oracle) to a company I'm completely independent from.
I've had the same positions on API-related copyrights for more than ten years. Before and after fighting against Oracle's acquisition of Sun. Before and after helping Oracle in connection with standard-essential patents.
In the first quarter of 2012, about two years after fighting against Oracle, and still a while before doing any work for Oracle, I noted that "threatening with a delayed trial gives the judge leverage only against Oracle, but even if he has leverage of a certain kind, he should use it fairly" and said I was surprised that after Google had delayed the case through a meritless mandamus petition, he faced Oracle with the choice of either leaving a key piece of evidence out of the case or the case being delayed. That was not balanced. Still in the first quarter of 2012, I wrote that Judge Alsup "can't force Oracle to withdraw anything, but he can delay resolution of the case, and that gives him enormous leverage." Unlike Judge Koh in the same district, who allowed both Apple and Samsung to reassert withdrawn patents in a separate case (they haven't made use of that option so far and maybe never will, but they could do so), and who even wants to let Apple enforce a patent that has been held invalid at a far later stage of proceeding, Judge Alsup required Oracle to drop patents with prejudice just because of rather early and not too meaningful USPTO findings. Actually, even during the earliest phase of the trial, one withdrawn patent was suddenly affirmed despite a prior "rejection" but Judge Alsup barred Oracle from asserting it again. Another withdrawn patent was revived on appeal this March. So much for justice and fairness in connection with reexamined patents.
After the appellate proceedings, I hoped and even thought that he would, despite his reportedly ego-driven way of running the show, try hard to be fair. I already had some doubts, but only voiced them cautiously between the lines, when he allowed (tentatively so far) Google to present its equitable defenses at the retrial, though this could greatly confuse the jury with respect to the (actually distinct) "fair use" factors, but did not want Oracle to bring up its willfull-infringement arguments (which are extraordinarily strong here and I will publish some of the evidence that is already in the public domain when the trial begins) in a first phase of the trial because he thought this time could be saved in case Oracle doesn't prevail on the merits: Oracle should only argue willfulness after prevailing on the merits, i.e., at the remedies stage.
Admittedly, if Google prevailed on an equitable defense, that would be dispositive. It's just very unlikely. There's a strong basis for saying Google actually lost on those defenses at the first trial and didn't preserve them on appeal. Anyway, it's true that willfulness is a remedies-related matter. But why would a judge who ran the 2012 trial in a very uneconomic way (letting a jury consider "fair use" even before he handed down his flawed non-copyrightability ruling) now all of a sudden be concerned about a limited amount of willfulness argument in the early phase of the trial? The simplest explanation would be because he might love to see Google defend itself on the merits, so if the jury gets confused by Google, that's fine, but if the willfulness arguments Oracle could present would psychologically influence the jury with respect to "fair use," then that must be avoided. I'm not saying I know what's going on in his mind, but the freedom of speech also extends to speculation about potential reasons.
I'll try to find that story again but I remember once having read something about Judge Alsup having written a letter to an appeals court to disagree with an appellant (he felt he needed to correct some misrepresentations) and to defend his ruling. I'm not aware of any other district judge ever having done that anywhere in the world. Apparently he cares a great deal about what happens to his decisions on appeal, and the highest-profile decision he made, at least in an IT/IP context, was the non-copyrightability finding that turned out to have been wrong on each point. But that wasn't Oracle's fault. Oracle's counsel tried hard to educate Judge Alsup about the way U.S. software copyright law works. If he had agreed with Oracle, the Federal Circuit would have affirmed his decision.
Since the beginning of 2012, this judge has not been fair in my opinion. He's also been completely wrong on a key issue, which is not just my opinion but also that of the Federal Circuit judges, who wield a far bigger stick every day than he ever has. He called Oracle v. Google the World Series of IP cases. The Northern District of California is a major IP litigation venue, but the World Series of IP finals take place in Washington, DC. Unlike in baseball, however, the local venue can delay things a lot. I hope Oracle will not back down because that would be a bad precedent for everyone who believes courts should be fair, experts should be neutral, and judges should be fair in light of the fact that "justice delayed is justice denied" almost always affects only the plaintiff.
I will continue to follow this case, and I won't mince words if I find more signs of unfairness. In my totally independent role, in which I can testify under oath that there is no relationship with Oracle, I can do so without having to fear that someone else would be penalized for what I say.
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