Oracle v. Google: Judge leaves Oracle reeling on viability of its damages claims

1. Oracle has stepped into a bear-trap in this case and is trying to extricate itself. This does not mean that it has a losing case on the merits. That is a matter yet to be decided and it will get as fair a trial in this court as it would anywhere else. Given the nature of its claims, and the murky standards associated with its patent and copyright claims, it likely will get some damage award. But Oracle does not want just some damage award. It wants to hold the prospect of a potentially devastating damage award over the corporate head of Google and to use that as leverage to gain a lasting foothold in the dollar flow of the mobile space via a settlement with Google on potentially brutal terms.

2. Judge Alsup is as fair-minded and talented judge as one could want but he also is a tough judge in terms of managing what he allows to come before his court. And he is not buying the outrageously phony damage claims that Oracle is trying to foist upon this trial via its designated expert. Because the law permits him to do so, he is effectively pre-screening what can come before a jury in the case and he has declared that he will put a tight limit on what is permissible. This means that Oracle will not be able to take its crap-shoot before the jury in hopes of gaining in terrorem settlement leverage over Google through the possibility that a crazy jury might be inclined to try to slam Google with a monstrously large damage award.

3. Just last year, Judge Phyllis Hamilton, a colleague of Judge Alsup's, reversed a $1.3 billion award in favor of Oracle against SAP. That case involved blatant theft of Oracle's software by TomorrowNow, an SAP subsidiary, and was so bad that SAP admitted liability up front such that the only issue to be tried was the amount of the damages suffered by Oracle. In that case, Oracle put Larry Ellison on the stand and had him speculate that Oracle must have lost $4 billion in software sales as a result of the admitted infringements. There was no factual basis for this claim - just the opinion of the company CEO. Yet that sort of evidence was allowed to go before a jury and the jury bought it. In rethinking the issue (for she had been the judge who had initially allowed it), Judge Hamilton held that this was improper and, in doing so, reduced the verdict to less than a fourth of what the jury had entered. (see, e.g., this report on the case: http://www.crn.com/news/applications-os/231600674/judge-redu...) This was a correct ruling and Oracle's prospects of getting it reversed are about zero.

4. What Judge Alsup is doing here is acting as gate-keeper to make sure that such junk does not enter into this trial either. In theory, Oracle should not mind this. If all they want is a fair trial, there is nothing wrong with excluding unsupportable expert testimony from that trial. But that is not what Oracle wants. It wants, above all, to be able to hold a huge threat over Google to pressure it into settling on very bad terms.

5. In that light, let me translate a few of the items in this order and in the surrounding procedural context: (a) Oracle asked to be able to dismiss its patent infringement claims without prejudice (in effect, asking the court for permission to drop those claims for the moment so that it can reassert them pretty much any time it wants to at a later date, thus keeping a cloud of uncertainty hanging over the Android platform) - the judge said no - translation: "I am not about to let you play games with the judicial system for ulterior motives: you will get your trial and you will get it here, just as you asked for it in causing Google, the court, and a lot of others to devote huge resources to the handling of the issues you raised;" (b) Oracle asked that the judge bifurcate its claims such that the copyright claims would be tried first and the patent claims tried in a separate phase of the trial many months down the road - the judge said no - translation: "You will put on your entire case in one place and not be allowed to play the courts opportunistically by going for multiple bites at the apple;" (c) the judge took the unusual step of allowing Oracle yet a third try at amending its expert's damages claims even though he had ample discretion to say "enough is enough" at this point and to toss them altogether - the judge was not being "nice" in doing this - translation: "Unless you truly come in with something credible, I am going to slam your expert's claims once and for all and I am creating a solid record of giving you a full and final opportunity to fix the problems after fair warning that this was coming and in that way no appellate court will ever reverse that ruling."

6. This is a complex case that could take a variety of directions but one thing is certain: it is in the hands of a very able judge and, if Oracle will ultimately prevail with a big outcome, it will only do so because it deserves this under the law and not because it will get away with gaming the system (as it did, for example, in the TomorrowNow case). And that is why Oracle is reeling concerning its claimed damages in light of this ruling. It is getting trapped (as it should be for these sorts of shenanigans) and it knows it.

Can't we at least pretend that what happens in court is a matter of Justice and Right or Wrong? I'm personally happy that Oracle isn't winning this case, since I wish more people will have the right to implement their own Java in their products. It just pains me that you have to be a mega-corporation with the strongest legal department in the world, in order to do this.

That statement struck me. It's interesting how often people confuse being polite with being a push over.

coughFlorian Muellercough