Google Has No Basis to Toss Expert, Oracle Says

SAN FRANCISCO (CN) - Oracle blasted Google's attempt to sideline one of its experts in a multibillion case that claims Google's Android phone infringes on Oracle's patented Java technology.

Google moved to exclude what it called "results-oriented" testimony from Boston University finance professor Iain Cockburn on June 24. The brief accuses Cockburn of ignoring "settled legal framework for evaluating patent damages and many years of evidence establishing the modest market value of Java technology."

Extensive portions of the brief are blacked out, and it is marked "Highly Confidential - Attorneys' Eyes Only."

In a response filed Tuesday, Oracle says "Google's ... arguments largely distill down to assertions that, as it views the evidence, the infringed patents and copyrights are not really important to either Oracle or Google, and that Google's acts of infringement are not really closely related to the billions of dollars in revenues it earns each year from Android Google allegedly claims that the 'infringed patents and copyrights are not all really important to either Oracle or Google, and that Google's acts of infringement are not really closely related to the billions of dollars in revenue it earns each year from Android.'"

"These issues provide no basis to exclude or limit Prof. Cockburn's testimony," Oracle continues, adding that Google failed to counter Cockburn's qualifications or his analysis.

Moreover, the Java platform is "immensely valuable" for both Google and Oracle, a fact that is "confirmed by the negotiating record of the parties," according to the new brief.

Over the last four years, Oracle says Google has tried three times to license the Java platform from Sun Microsystems, yet it repeatedly rejected "reasonable licensing terms" and instead chose to "willfully infringe" on Oracle's intellectual property to release the Java-based Android platform.

Google decided to release the infringing platform because it was unwilling to pay up-front royalties and an additional percentage of related revenues, according to the brief authored by Oracle attorney Michael Jacobs with Morrison & Foerster. It also allegedly refused to share Android products with Sun Microsystems.

"The combined value of this control and royalty structure would have been in the billions of dollars," Oracle says.

But none of these arguments represent a valid reason to exclude Cockburn, according to Jacobs' brief. Instead Google allegedly "misconstrues or misunderstands" Cockburn's analysis in multiple respects.

Google had said Cockburn estimated it owed Oracle between $1.4 billion and $6.1 billion in damages, but Oracle says Cockburn actually put the figure at $2.6 billion.

Oracle also claims Cockburn did not "preordain a royalty rate," despite Google's contention that Cockburn put that figure at 20 to 50 percent.

Google also improperly concluded that Cockburn's calculation would award a royalty based on the "worldwide revenues from advertising displayed on Android phones," according to the Oracle, which says the calculations are based on the "incremental value of Android compared to (and subtracting) the revenues it would have made if there had been no Android and Google earned its mobile advertising revenues from other platforms."

By relying on mischaracterizations, Oracle says Google "attacks a straw man - a poor and inaccurate caricature" of Cockburn's report rather than going after his actual methodology and analysis, which is "consistent with accepted economic principles and the law of patent and copyright infringement."

Cockburn's damages analysis and calculations are supported by an "abundance of evidence" and are "reasonable" in respect to Oracle and Google's commercial relationship and the magnitude of the profits at stake, according to the brief.

The $2.6 billion in damages over a 10-year period average out to about $200 million per year out of the "billions" Google stands to make from the Android platform, Oracle claims.

"Google may dispute certain factual premises and assumptions" employed by Cockburn, but those disputes do not provide a basis to exclude his testimony, Jacobs wrote.

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