Google Says Oracle Expert Inflated Damages

SAN FRANCISCO (CN) - Google claims Oracle's expert ignored precedent in claiming that Google could owe Oracle more than $6 billion for infringing seven patents that cover Java technology, according to a brief filed in Federal Court in the continuing battle between the technology giants.

Iain Cockburn's "results-oriented" testimony ignored "settled legal framework for evaluating patent damages and many years of evidence establishing the modest market value of Java technology," according to the 30-page "Brief in Support of Daubert Motion." The brief, extensive portions of which are blacked out, is marked "Highly Confidential - Attorneys' Eyes Only."

Cockburn estimated that Google could be on the hook for $1.4 billion to $6.1 billion for infringing on any of Oracle's seven patents at issue.

Oracle claims Google's Android operating system violates the seven patents.

But Google claims that "even the low end" of Cockburn's range is "over 10 times" the royalties Sun Microsystems made in each year from its Java licensing program and "20 times what Sun made in royalties for Java-based mobile licensing."

If it received damages in the high end of the range, Oracle could "finance nearly its entire acquisition of Sun, even though only a small part of [Sun Microsystems'] value was related to Java," according to the motion.

Google attorney Donald Zimmer calls Cockburn's estimate "orders of magnitude beyond" a reasonable valuation of the intellectual property at issue. Zimmer wrote the brief in support of a motion to exclude Cockburn's territory.

He claims Cockburn did not "separate out and value the patented technology at issue, instead using the purported value of the entire Java platform as the basis for his damages claim."

Cockburn did not calculate the incremental value of the allegedly infringing technology to the Android platform, but added up Google's incremental profit from advertising on all Android devices worldwide and the purported harm to Oracle and Sun Microsystems from lost profits and alleged "fragmentation" of the Java platform, according to the brief.

But Zimmer said "none of these are proper components" of a calculation for patent damages and royalties.

Zimmer claims that the Android platform software, which Google does not sell and from which it earns no direct revenue, is the product accused of infringing on Oracle patents - not Google's advertising business; he says the value of the two are "entirely separate."

Zimmer adds that Oracle's "lost profits cannot be used to inflate the royalty calculation," that "lost profits are a separate category of patent damages, authorized only if the patentee meets a distinct and demanding test that Cockburn does not even attempt to satisfy."

Finally, Zimmer claims that the purported future damages from so-called "fragmentation" of Java relate to "theoretical downstream harm to a wholly different Oracle product that is not recoverable as damages" in this case.

According to Zimmer's brief, Cockburn claimed that Oracle should be awarded more than 50 percent of the net benefits Google would receive from licensing the patents and copyrights at issue from Oracle, resulting in a royalty rate of over 20 percent.

Zimmer said Cockburn's methodology is not "consistent with any real-world negotiations regarding any aspect of Java technology."

He claims Cockburn treats the patents and copyrights at issue as a single, indivisible unit, "casually dismissing" critical differences, including expiration dates that are more than a decade apart. As a result, Cockburn concludes that infringement of "a single claim of a single patent should result in the same multi-billion dollar award as infringement of all the claims."

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