(CN) - As a trial approaches on whether Google's Android infringes on Oracle's patented Java applications, Google is still focused on trying to make confidential an email in which one of its engineers says the alternatives to Java "all suck."
U.S. District Judge William Alsup wrote in an Oct. 20 order that "simply labeling a document as privileged and confidential or sending it to a lawyer does not automatically confer privilege."
In the contested email, Google engineer Tim Lindholm told the Google vice president in charge of Android, Andy Rubin, and house counsel Ben Lee that engineers had looked for alternatives to Java and "they all suck. We conclude that we need to negotiate a license for Java under the terms we need."
Oracle sued Google six days after the email was sent.
Google attorney Robert Van Nest said Oracle had violated the court's protective order, and that Google plans to appeal Alsup's decision because the emails should remain confidential.
"The unfortunate fact that the contents of the contested documents were partially published before the court even ruled upon Google's privilege claim is therefore solely the result of Oracle's violation of the agreed-upon process, and should not be considered as a reason for denying Google relief under the protective order," Van Nest wrote in the motion.
In a separate document filed Tuesday, Google responded to Oracle's motion for partial summary judgment.
Rejecting Oracle's argument that the motion "remains premature," Google said it is not liable to pay damages on any alleged infringement that occurred before July 20, 2010.
"Oracle, not Google, is the party that is trying to 'have its cake and eat it, too' by making assertions about things that it intends, and has the burden, to prove at trial, and then trying to wriggle out of those contentions to avoid partial summary judgment on damages," Google attorney Van Nest wrote.
The cake reference had appeared in an opposition memorandum Oracle filed Friday.
Google claims in its reply that Oracle has conceded the undisputed facts "by its silence."
Oracle admitted it "is not aware of any device, system, or product expressly marked with the patent number of any of the Patents-in-Suit or Related Patents," Van Nest pointed out.
Google says it does not have to concede liability to win summary judgment. It also submitted a document opposing Oracle's introduction of a rebuttal expert who did not serve an opening report.
"Oracle wrongly reads the court's scheduling orders as giving the parties carte blanche to submit, in response to an expert's opposition report, as many reports from as many 'rebuttal' experts as it would like," Van Nest wrote.
Claiming Google will be prejudiced if the court allows Dr. Kenneth Serwin to testify on damages for Oracle at trial, Van Nest asked the court to strike the "rebuttal" reports.
Van Nest is a partner with Keker & Van Nest in San Francisco.