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March Trial Set for Google’s Throw-Down With Oracle

SAN FRANCISCO (CN) - A federal judge on Wednesday gave Google and Oracle just over two months to prepare for the first phase of a jury trial on claims that the Android operating system infringes patented Java technology.

Scheduled to start on March 19 at the earliest, phase one will deal with copyright claims only, U.S. District Judge William Alsup said. Each side will get 16 hours to submit evidence, after which the jury will render a verdict on copyright issues.

Patent-infringement allegations will make up the second phase, and each side will have 12 hours of evidence time. The same jury will again return a special verdict on patent issues.

If necessary, phase three will deal with all remaining issues, including willfulness of infringement. Each side gets up to eight hours of evidence time in this respect.

The parties can save time from an earlier phase and use it in a later phase, but they cannot borrow time from a future phase. Trial testimony will not be recorded.

In a separate order also issued Wednesday, Alsup responded to pretrial motions in limine. The judge denied Google's latest attempt to exclude emails in which Google engineer Tim Lindholm urges his employers to negotiate a license with Oracle because alternatives to Java "all suck."

A reasonable jury could find that Lindholm had knowledge about Java and Android technology as separate platforms, and any potential crossover between the two, according to the court, which noted that Lindholm has authored a book about Java and belonged to early Java development teams.

Alsup also found the exchange relevant to damages and willfulness because "the email was sent after Oracle accused Google of infringement." Since Lindholm worked with Java and Android in the past, the email shows there was an "objectively high likelihood that Google's actions constituted infringement of a valid patent," the eight-page decision states.

"In the interest of fairness," however, Lindholm cannot testify on matters he claimed were privileged during his deposition, according to the court. These matters include what technical Java alternatives Lindholm had investigated, what he meant by technical alternatives, who thought the alternatives "all sucked," and what license terms he had in mind.

Google cannot exclude alleged performance benefits of Android with the accused functionality, but it can exclude portions of testimony regarding the Android's commercial success, Alsup also ruled.

The jury will be told that the Motorola Droid is the only Motorola device accused of infringement.

Oracle can partly exclude evidence regarding patents that were being re-examined, Alsup ruled, finding that it would be wrong to not let the jury hear conclusions on patents that had already been re-examined.

It can also partly exclude evidence regarding Oracle's past actions with application programming interfaces, Alsup said, finding that such a "broad categorical exclusion" is "unwarranted."

It cannot exclude evidence that third-party manufacturers changed infringing components of Android, he added.

Neither side can reference whether Google relied on legal advice in deciding to develop and release Android without prior approval, according to the court.

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