Google Insists Oracle Relied on Flawed Expert

     SAN FRANCISCO (CN) – Google defended its motion to toss expert testimony from a Boston University finance professor who estimated that Google owes billions because its Android phone infringes on Oracle’s patented Java technology.

     The Mountainview, Calif.-based tech giant rejected Oracle’s contention that the problems with Professor Iain Cockburn are purely superficial.
     “Google’s criticisms go to the heart of Cockburn’s testimony, which makes no attempt to tie his analysis to the facts of this case and disregards Federal Circuit limits on patent and copyright damages,” Google attorney Daniel Purcell of Keker & Van Nest said in a brief filed Tuesday.
     Cockburn’s analysis misrepresents the product that Google is accused of copying, the 18-page brief states.
     Cockburn and Oracle conflated the seven patents and copyrights at issue with Java in an “extreme overreach,” Purcell claims. The intellectual property at issue, however, is not Java, according to Google. It is in fact “a small subset of the technology comprising the version of the Java Virtual Machine as it is used on the Java MicroEdition platform,” which forms the base of the operating system that supports smartphones and other mobile devices, the brief states.
     Cockburn relied on the “wrong categories of data entirely-data regarding the value of Java as a whole, or other telecommunications technologies, rather than data tied to the intellectual property at issue,” Google claims.
     In its answer to Google’s motion to dismiss Cockburn, Oracle had said Google avoided attacking the professor’s qualifications or analysis. Instead, Google allegedly tried to minimize the importance of the patents and copyrights at issue, while claiming that the infringement is not really closely related to the billions Google earns from the Android each year.
     Google rejected the assertion that it is “quibbling about marginal issues.”
     Cockburn and Oracle consistently refer to “the Java patents” without offering a “shred of evidence” that the technology at issue is important or essential to Java, Google claims, adding that Oracle even admitted in discovery that it has “no evidence that any of its intellectual property is essential to Java.”
     “In a desire to maximize Oracle’s damages,” Cockburn does not even address the “relevant question” of the incremental value of the patents and copyrights at issue to Java and Android, according to the reply brief. Instead Cockburn ignores Sun Microsystems’ “decade-long history of freely licensing Java to all comers for relatively little money” and the company’s negotiations with Google to license Java in favor of “litigation settlements and licenses for wireless technologies not at issue here.”
     Rather than calculate what Google owes based on the infringing technology only, Cockburn also improperly awarded half of Google’s alleged incremental gain from Android as a whole, Purcell argued for Google. He adds that Cockburn also used Google’s Android advertising revenue to calculate royalties even though Oracle does not claim that Google’s advertisements infringe on its technology.
     Another problem that Google identifies is that Cockburn “double-counts by importing damages for future conduct,” but the injunction sought by Oracle would preclude that outcome. Cockburn also allegedly gives Oracle royalties on “purely foreign activities.”
     Although federal cases require experts to “tie their analysis closely to the facts of the case at hand, Cockburn ignores myriad (relatively modest) market evaluations of Java and its components, relying instead on inapposite licenses with larger attached dollar amounts,” according to the brief (parentheses in original).

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