Jurors Will See Incriminating Google Email

Oracle Corp. buildingGoogle will have to explain to jurors in Oracle’s patent infringement trial why its own engineer sent an email saying Google needed a Java software license for its Android phones.  Judge William Alsup ruled this week that Oracle Corp. may use the incriminating email in the upcoming trial over Google’s objections.

“His admission that Google needed a Java license is relevant to the issue of infringement,” said Alsup in a pretrial order rejecting Google’s effort to have the email barred.

But engineer Tim Lindholm will not have to explain why he said all the alternatives to Java “sucked,” because he had refused to answer deposition questions about that on grounds of attorney-cleint and work-product privilege.    

The lawsuit stems from Oracle’s claims that Google’s Android operating system for smart phones and other mobile devices infringes Oracle patents acquired in the 2009 takeover of Sun Microsystems Inc., developer of Java.  The trial has been tentatively set for March 19.

Both sides have fought long and hard over the use of engineer Tim Lindholm’s email.  Not only does Oracle get to use the email in the liability portion of the trial, but if Google is liable, Alsup ruled the email is “also relevant to damages.”  This could be the billion dollar email.  Oracle has sought nearly $1 billion in damages but the judge has expressed skepticism during a recent hearing, suggesting it could turn out to be a very low dollar case.

Lindholm was a former Sun engineer who co-wrote a book about Java and was on the early Java development team.  The fact that Lindholm never reviewed the patents or copyrights, never reviewed the source code was unpersuasive, Alsup wrote.

“Google is worried that the jury will interpret the email without context and overvalue its importance,” he said.  They can introduce testimony to explain it away, he said.

The Android platform uses the Java programming language making it simpler for software developers already familiar with the Java language.  But in contrast to Java, Android uses what’s called the Dalvik virtual machine instead of the Java virtual machine and provides other non-Java components.  While Java is used in desktop computers, cell phones and mobile devices, Android is specifically for mobile devices.

It is Google’s Dalvik elements that Oracle alleges infringe the Java copyrights and patents.

In addition, Alsup told both sides in October he will be break up the case into three more manageable trials, all with the same jury.

Phase one will assess Google’s liability for alleged copyright violation claims.  Phase two will decide any liability for alleged patent infringement.  And the final phase will decide damages and willfulness, if there is any guilt found by jurors.

Oracle is asking for $1 billion in damages from Google.

Case:  Oracle America Inc. v. Google Inc., 10-3561WHA (N. Dist. of Calif.)

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