Oracle, Google must focus on patents and people at trial

IDG News Service - Both Oracle and Google would be well-advised to center their cases around people along with a painstaking discussion of patents once their lawsuit over the Android mobile OS goes to trial, according to experts.

Oracle sued Google in August 2010, claiming that Android was in violation of a number of patents and copyrights it holds on Java. Google has denied wrongdoing, saying Android employed a "clean-room" implementation of Java that didn't violate any Oracle intellectual property.

"Patents regarding software code are extremely difficult cases to put to a jury," said Paul Neale, CEO of New York-based DOAR Litigation Consulting. "The plaintiffs are at a disadvantage in this instance. You have to get into the details and compare the patents, and try to draw the distinction. But at the end of the day, trying to interpret patent drawings and explaining the differences between them is very difficult."

The case is really split between technical issues over patents and copyrights and "what actually happened," Neale said. "Juries want to know what happened between people."

Offering clear potential for such a narrative is the controversial email authored by Google engineer Tim Lindholm shortly before Oracle filed suit in August 2010.

"What we've actually been asked to do by Larry and Sergey is to investigate what technology alternatives exist to Java for Android and Chrome," Lindholm wrote, referring to Google co-founders Larry Page and Sergey Brin. "We've been over a hundred of these and think they all suck. We conclude that we need to negotiate a license for Java."

Google has repeatedly tried and failed to keep the email out of the case on a number of bases, including that it was subject to attorney-client privilege.

It's not yet clear whether the email will come up for discussion at the trial. Google tried repeatedly without success to keep the email out of the proceedings, and recently filed a petition with a U.S. appeals court over it.

Juries participating in mock trials have shown a great deal of interest in the content of email correspondence, said Scott Daniels, a partner and intellectual-property attorney with the Washington, D.C., law firm Westerman, Hattori, Daniels and Adrian, which has conducted many such proceedings.

He echoed Neale's belief that effective patent litigation has to include discussions of human interactions.

Daniels watches other patent trials as part of his job. He recalled a case he attended in Brooklyn because his firm's client believed it was next to be sued. Daniels wanted to view the jury and gauge their reactions.

"There were two women who took copious notes the first two days while the rest napped, but by the third day, they were napping too," he said.