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Judge Allows Expert in Google-Oracle Fight

     SAN FRANCISCO (CN) - A federal judge Monday refused to disqualify a court-appointed expert in a long-running, multibillion-dollar copyright fight between Oracle and Google.

Oracle attorneys on Thursday asked U.S. District Judge William Alsup to disqualify James Kearl as a damages expert. Oracle said at the hearing that Kearl favored Google in a separate patent fight between Apple and Samsung.

Oracle sued Google in 2010, accusing it of lifting its copyrighted Java source code and using the programming in its Android operating system.

A jury found Google guilty of copyright infringement but could not decide whether it made "fair use" of the code in question. A new jury is supposed to settle that issue in May 2016.

On Monday, Alsup rejected Oracle's claim that Kearl's role in the Apple v. Samsung case presented an "appearance of impropriety" that justifies excluding him as a neutral expert.

Oracle accused Kearl of intentionally deflating Samsung's patent infringement counterclaims against Apple to make Apple's $2 billion claim for damages appear unreasonable.

Oracle attorney Matthew Bush said Samsung paid Kearl $5 million to estimate its counterclaim damages at $6.7 million, a fact that Apple attorneys seized upon during cross-examination.

Alsup's Monday ruling cites a declaration submitted by Kearl, in which the court-appointed expert said he "did not intentionally lower" his damages estimate in Apple v. Samsung, but offered "a well supported and reasonable estimate" based on objective evidence.

Alsup said Kearl's role in the Apple case was limited to Samsung's counterclaims, which had no relation to Google's Android operating system.

Although Google provided financial backing for Samsung to fight the Apple lawsuit, it provided no funding or direction for the counterclaims portion of the case, according to Google and Alsup's ruling.

The judge also called allegations that Kearl purposely devalued Samsung's counterclaim damages as "speculation" that is "too flimsy" to support disqualifying him as an expert.

During oral arguments, Bush said Oracle may want to cross-examine Kearl on the issue of bias, but fears the jury may view his appointment by the judge as a signal that the court has endorsed Google's side.

Alsup didn't buy it. "If this 'problem' arises, the court will solve it with an admonition to the jury," he wrote.

Oracle also claimed that because the case no longer involves patent claims, an independent damages expert is no longer needed.

Alsup disagreed. "The fact that the patent claims have fallen away does not remove the need for the jury to understand the roles and relative importance of the accused items as elements of products, rather than entire products," Alsup wrote in the 9-page ruling.

Alsup said Kearl's continued involvement in the case will help the jury comprehend complex damages studies submitted by both parties, and issues arising from Daubert v. Merrell Dow Pharmaceuticals, a 1993 Supreme Court case which ruled that expert testimony must be based on sound scientific methods.

In conclusion, Alsup said he would reconsider removing the expert if "the surviving damage theories by both sides" become so uncomplicated that an expert is no longer needed.

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