SAN FRANCISCO (CN) – U.S. District Judge William Alsup slammed Oracle’s lawyer for trying to keep evidence secret in an ongoing battle over Java computer code contained in the highly popular Android phone, with the judge saying at Thursday’s hearing that federal court is not owned by the big companies.
Alsup’s blast was aimed at the Oracle lawyer’s effort to keep information outside the public record while using a federal court in its effort to extract $1.6 billion from Google over the Android operating system for smart phones.
“If Google has a file saying they are going to willfully infringe I’m not going to keep that from the public,” Alsup told Oracle’s lawyer Steve Holtzman.
“The big companies do not own the U.S. District Court,” Alsup continued. “When it comes to a public hearing I’m not going to resort to Morse code to figure out what you are saying.”
Alsup’s tongue lashing included a reaction to what he saw as Oracle’s effort to gag a federal judge through the use of trade secret laws. “This is not a wholly-owned subsidiary of Oracle,” said the judge. “Nobody is going to put my word under seal even if I refer to your secret documents.”
When the lawyer could not promptly cite an email exchange that he claimed supported his position, which is that Google’s executives knew they were infringing on proprietary patents, the judge’s criticism moved on to the lawyer’s preparation for the federal hearing. Alsup told him to be “more accurate” and “come prepared.”
Holtzman is a partner with Boies, Schiller and Flexner LLP in Oakland, California. His firm represents Oracle in its lawsuit for massive damages on its claim that Google is infringing on proprietary asepects of Java, a computer language or script that is owned by Oracle.
Some aspects of the the Java code are open source, in other words free, but some uses of the code cost money. Programmers sometimes refer to the dual system as “the Java trap” where the tempting use of the free code then takes the user into the proprietary code that is very expensive.
For example, a public programming project in California for keeping track of court cases is based on Java code. In addition to the controversy that the Court Case Management System has generated over its high cost and poor functionality, those who work with the system are concerned that it may bind the state of California for years to come in payments to Oracle.
At Thursday’s hearing in federal court in San Francisco, lawyer Holtzman eventually pointed to an exchange between Google CEO Andy Rubin and Google’s co-owner Larry Page, saying a license for Java was needed.
Judge Alsup read the exchange into the public record.
“What we’ve been asked to do is investigate what technical alternatives exist to Android and Chrome,” said the email. “We’ve been over a bunch of these and think they all suck. We conclude that we need to negotiate a license for Java.”
Holtzman argued the email revealed that Google’s executives knew they needed a license and did not bother to get one, which would show they willfully infringed Oracle’s technology.
Answering that argument, Google lawyer Bob Van Nest said the email in question was not sent until August 2010, after Oracle bought Sun Microsystems and threatened to sue Google. As a result Google looked for alternatives to avoid a long and costly trial and concluded that licensing Java was one of them, but that does not amount to willful infringement.
Van Nest also said Google’s meetings with Sun Microsystems in 2007 were not “pure licensing negotiations” because Google was deciding between two options in building Android.
Google could either form a technology partnership with Sun Microsystems to build a new product or Google could use its own engineers and technology. Google could not come to terms with Sun Microsystems so they took the second option, according to Van Nest.
The San Francisco-based lawyer argued that nobody at Sun Microsystems was talking about infringement at the time or thereafter. In fact, in a sworn deposition taken Wednesday, former Sun CEO Jonathan Schwartz said his company welcomed Android to the Java community when it was introduced in 2007, calling it a “pair of rockets strapped to Java that will take our Java-community even higher.”
The first talk of infringement was a few months before Oracle sued Google, after Oracle CEO Larry Ellison “paid lots of money” to acquire Sun Microsystems in April 2010 and “then turned around and sued Google,” claimed Van Nest.
Schwartz will testify, according to the Google lawyer, that Google had built its system “in a cleanroom and had a license from Apache that let them use Apache code.”
Google asked Judge Alsup to strike a damages report submitted by Boston University finance professor Iain Cockburn.
The lawyer said Cockburn, testifying as an expert on behalf of Oracle, had made series of mistakes.
He included misrepresentation of the patents allegedly infringed. He calculated Google’s advertising revenue from Android into the amount they allegedly owe for royalties even though Oracle does not claim the advertisements infringe its technology. And he awarded fully half of Google’s profits from Android as a whole instead of focusing on the part of the technology Oracle claims infringes on its patents, said Googles lawyer.
Van Nest concluded that until Oracle re-does a report following “established principles,” Oracle should not be allowed to file a damages report.
For his client, Holtzman naturally defended Cockburn’s analysis, claiming the “record will show when you look at facts and adjust properly you get something extremely consistent with the damages report,” which estimated Google could owe Oracle up to $6.1 billion in damages.
Holtzman also challenged Google’s assertion that advertising revenue should not be included when determining damages and that damages should therefore be “zero in this case.”
“That is ridiculous” said the judge. “Not going to happen, so you [do not] have to worry about it.” He added that Google and Oracle are “both asking for the moon and you should be more reasonable.”
Alsup challenged Holtzman further, saying Oracle cannot even make up its mind as to what claims it is going to assert on what patents and that Oracle wants Alsup to “gamble that whatever you assert is the entire market value [of Java].”
Holtzman later claimed in response to a peppering of questions from Alsup that Google adopted the entire architecture of Java in order to achieve satisfactory performance, memory usage, and security. He said “that will be our position, our evidence and our expert testimony.”
At the close of the hearing Alsup indicated a ruling would be issued soon.