Google Has More Points to Make in Android Dispute

SAN FRANCISCO (CN) - Joining the apparent bandwagon in the waning moments of a capsized dispute over Java software in the Android operating system, Google filed its own request Tuesday for judgment as matter of law or a new trial.

Google's post-trial efforts seem misplaced considering that it came out on the winning end in the first of the smartphone wars, dispatching claims that it willfully infringed several Java copyrights and patents while developing the Android operating system. Oracle acquired the rights to Java when it bought Sun Microsystems in 2010, and filed suit against Google for the infringements weeks later.

Oracle's own post-trial request for judgment as a matter of law did not fare well with U.S. District Judge William Alsup effectively ending the once-landmark litigation over technology copyrights and patents at the trial court level.

Google says, however, that its filing aims solely to preserve "its rights on appeal in light of the fact that Oracle has stated its intention to file an appeal in this matter."

The five-page motion reiterates Google's position that the nine Java files it was found to have copied, involving a method called rangeCheck, constituted de minimis infringement since there are millions of lines of code in Java.

Oracle maintains that Google infringed its copyrights and patents to quickly get the Android platform and smartphones on the market.

Though a jury found that the copied rangeCheck amounted to infringement, Alsup later set the verdict aside. Alsup also refused to set aside the jury's finding that cleared Google of all patent-infringement claims.

Google's latest motion says that the guilty verdict for the rangeCheck infringement represents the culmination of an error in Alsup's jury instructions.

"Over Google's objection, the court instructed the jury that '[f]or purposes of [the rangeCheck infringement charge], the 'work as a whole' is the compilable code for the individual file,'" according to the motion authored by Google attorney Robert Van Nest.

"That instruction was error," Van Nest added. "As explained in Google's prior copyright briefing on this issue, the court should have instructed the jury to compare the rangeCheck code to the entire [Java] platform to determine whether it was de minimis."

Even Oracle bases its infringement claims on copyrights issued for the entire Java platform, the motion states.

"There is no proper legal or evidentiary basis on which either of Oracle's two copyright registrations in two different versions of [the Java platform] as a whole can be subdivided, file by file, into separate copyright-protected 'works,'" wrote Van Nest, an attorney with Keker & Van Nest.

"The rangeCheck function is quantitatively insignificant," he added. "It is nine lines of code. The [Java] platform includes millions of lines of code. No reasonable jury could find that such a small amount of allegedly copied code is quantitatively significant."

Van Nest also called the code "qualitatively insignificant," pointing out that it is not even included in the current version of Android.

A hearing on Google's motion is set for Aug. 23, but Alsup is expected to rule beforehand as he did with Oracle's motion last week.

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