SAN FRANCISCO (CN) - A federal judge set a hearing for next week on whether to toss parts of a renewed damages report in litigation over the alleged use of Oracle's patented Java technology in the Google Android.
U.S. District Judge William Alsup set March 7 to hear a motion by Google to toss the third revised damages report submitted for Oracle by economics professor Iain Cockburn. In rejecting the two earlier reports, Alsup found they "advanced improper methodologies obviously calculated to reach stratospheric numbers."
Oracle claims the Android infringes its copyright and patents rights to Java.
After Cockburn first estimated that Google could owe Oracle up to $6 billion in damages, Alsup tossed most of that report and Cockburn's reply report. The parties then submitted briefs detailing whether Cockburn should be allowed to submit a third report.
Google argued the newest report should also be stricken, calling Cockburn's newest analysis "smoke and mirrors," and "a subjective guess." The brief also notes that Cockburn admitted he used the words "at least" to give himself flexibility to increase the numbers in front of a jury.
"This is as unformed and speculative as expert testimony can get," Google said. "It cannot possibly assist the jury."
Google also noted that Oracle engineers tasked with ranking the importance of Java-related patents did no quantitative testing to confirm their conclusions. One allegedly admitted there was no way to translate their judgment of comparative value into the hard numbers required for a damages analysis.
Cockburn tried to "paper over this gap with studies finding that, in general, a small percentage of issued patents account for a large percentage of the aggregate value of all patents," according to Google. "But none of these studies looked at a single company's patent portfolio in a narrow technology area, such as Sun's mobile Java portfolio, and two of the studies evaluated European patents, not U.S. patents."
Yet Cockburn uses the studies as the sole basis for his conclusion that the top 22 patents in the Sun portfolio account for up to 92 percent of the total value of the portfolio, according to the brief. Oracle purchased Sun in 2010 and inherited Sun's patent portfolio.
Oracle responded that Cockburn and another expert performed the analyses that Google claims they did not. It says Google made factual assertions and then quoted testimony that negated those assertions. Google allegedly speculated there might be facts that contradict Cockburn's analysis, but it offered no supporting evidence.
Oracle noted that "there is no mathematical formula for the determination of a reasonable royalty" and that Cockburn "examines the specific evidence in this case to determine proper apportionment percentages."
Oracle also responded that "numerous studies of patent value establish that most of the value of a group of patents is attributable to a very small number of patents in the group. Those studies calculate curves that allow one to estimate the percentage of portfolio attributable to the most significant patents in the portfolio."
Cockburn used the engineers' conclusions that three of the asserted patents are among the most technically important 4 percent of the patent portfolio to apportion economic value according to these curves.
Oracle also tried to refute Google's claim that the engineers' analysis is too vague because it did not rank the 569 patents in the portfolio individually. "False precision does not make for good evidence or good engineering analysis," the brief states "Prof. Cockburn appropriately deals with this by having an upper bound and a lower bound measurement of the value of the patents-in-suit."
In his order, Alsup said the court would provide guidance as to issues to be addressed at the hearing. He ordered Cockburn to attend and said he might be called to testify, while admonishing the parties not to "ask for a continuance as there are many excellent lawyers on both sides capable of addressing the issues."
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