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Google Can’t Supress Email in Java Fight

(CN) - A federal appeals court rejected Google's attempt to block disclosure of an email in which one of its engineers harshly criticized available alternatives to the Java programming language and advised his employer to negotiate a license.

The ruling is the latest salvo in high-profile litigation that will determine whether the Google Android infringes on Oracle's patented Java applications.

The U.S Court of Appeals for the Federal Circuit denied Google's petition for writ of mandamus, agreeing with Oracle that the email from Google engineer Tim Lindholm was directed to Google's pursuit of a license to the patents in question as opposed to assisting in-house counsel Ben Lee in his investigation into the infringement suit.

According to the ruling, "Lindholm states in the email that he was responding to a request from Google's management, not Google's attorneys. In addition, Lindholm directs the email to Rubin, the head of the smartphone division, rather than to Lee.

The email states "What we've actually been asked to do [by Google co-founders Larry Page and Serge Brin] is to investigate what technical alternatives exist to Java for Android and Chrome."

It continues, "We've been over a bunch of these, and think they all suck. We conclude that we need to negotiate a license for Java under the terms we need."

The court noted that the email did not evidence any sort of infringement or invalidity analysis.

It also rejected Google's other arguments to keep the email confidential, including the contention that courts have recognized that a lawyer in a legal department or working for a general counsel is most often giving legal advice.

According to the ruling, "this argument misses the point. It is not that Lee was acting outside the role of an attorney but that Google failed to demonstrate the purpose of the communication was to further its investigation into the infringement suit."

The damaging email first came to light when Oracle included it in a binder it introduced at a July 21 hearing without prior notice. U.S. District Judge William Alsup read the email from the binder.

Google claimed that Oracle introduced this binder in breach of a protective order. Alsup ruled, however, that it was not privileged and denied two requests from Google to strike the email exchange from the public record.

The appellate ruling came from Judges Alan Lourie, Sharon Prost and Kimberly A. Moore.

Pending pretrial matters could delay the start of jury trial on this case to mid-April or late 2012, Alsup said in his latest ruling.

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