SAN FRANCISCO (CN) — Google tainted a jury's verdict in a $9 billion copyright trial by hiding its plans to expand the Android operating system to laptop and desktop computers, Oracle told a federal judge on Wednesday.
Last May, a jury found Google's use of 37 Java application program interfaces, or APIs, in its Android operating system was fair use, a decision that allowed Google to avoid paying a potential $9 billion in damages to Oracle, the software company that owns the Java programming language.
That verdict came after another jury found in 2012 that Google had infringed Oracle's copyrighted code but deadlocked on the question of fair use.
During a hearing Wednesday, Oracle attorney Annette Hurst asked U.S. District Judge William Alsup to throw out the jury's fair use verdict because Google fraudulently concealed its plan to put Android "on millions of consumer desktops and laptops."
On May 19 — the day Oracle rested its case at trial — Google announced at a developer conference in San Francisco that it would make Android apps and Google Play available on Chromebook laptops and the Chrome operating system.
"They worked on it for months in secret," Hurst said. "They knew it. Google had an obligation to disclose it, and it was a game changer."
Hurst said the suppressed evidence allowed Google to make false arguments to the jury, claiming it did not harm Oracle's core market for Java because Android was only available on smartphones and tablets.
"This was the one thing that their experts hung their hats on and that the jury could have hung its hats on," Hurst said. "That whole foundation for their case is gone."
Hurst quoted Oracle's expert witness, Dr. Owen Astrachan, who said during trial that Android "is in a different context because it's not on a desktop or laptop" and "Android wouldn't work on your desktop or laptop computer."
Google had informed Oracle of an experimental program called Android Runtime for Chrome, or ARC, before the trial, but it also described the project as a failed experiment, Hurst said.
"ARC was by their own account an experiment and, by their account, a failure," Hurst told the judge.
However, Oracle referenced ARC in its pre-trial expert reports, including one that described the project as an attempt to "occupy the original market for the Java platform," Google attorney Christa Anderson declared.
"If they thought it was a failure, they didn't say so in their expert reports," Anderson said.
Before the second trial, Oracle argued that Google used its copyrighted Java code to expand Android into new markets with products like Android TV, Android Wear and Android Auto.
But the judge barred Oracle from presenting evidence of new Android products that went beyond the scope of what the jury had considered in the first copyright trial in 2012.
"No party had a duty to supplement discovery about matters beyond the scope of the trial," Anderson told the judge.
Nothing prevented Oracle from cross-examining Google's witnesses about ARC and whether Android could harm Java's core market during the second trial, Anderson added.
Oracle attorney Lisa Simpson also challenged Alsup's decision to limit the evidence presented at the second trial, arguing the jury deserved to hear "the entire universe of harm" caused by Google's infringing conduct.
"We didn't accuse a device or product," Simpson said. "We accused Android and those particular versions of Android which include the infringing material. The versions of Android are what's at issue."
When Alsup limited the scope of the trial, he noted that ruling would not block Oracle from filing a new lawsuit or supplemental complaint to litigate claims over other infringing products in the future.
Simpson called that "a piecemeal" approach that prevents her client from presenting "the full story of harm" to a jury.
Alsup said he was "sympathetic" to Oracle's argument, but that he felt it was prudent to set boundaries for this complex case so the jury had a stationary target.
"I thought it was fair to draw the line," Alsup said.
After about two hours of debate, Alsup ended the hearing and said he would consider Oracle's motion for a new trial and motion for judgment as a matter of law.
Alsup also ordered both parties to meet and confer to resolve a disputed $2.9 million in litigation costs that Google seeks to recover from Oracle.
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