(CN) – Oracle filed another brief to rely on an expert report in ongoing litigation with Google over alleged infringement of copyrighted Java in the Android operating system.
In its second motion to strike parts of the report, Google said Oracle’s expert John Mitchell “extends to accused products and infringement theories that were not disclosed in Oracle’s April 2011 infringement contentions.”
Oracle disclosed its infringement claims last December, and Google challenged those claims two months later. Oracle supplemented its initial claims twice, and Google still said the contentions were inadequate.
The Mitchell report referred to three devices that Oracle had not initially named: the LG Optimus, the HTC Droid Incredible 2 and the Motoral Atrix.
Mitchell claimed the makers of the Google phones “made no changes to the source code that would impact the infringement analysis.”
But U.S. District Judge William Alsup agreed with Google that the IDs came too late.
“Even with the intention of relying on circumstantial evidence to prove the similarity of many accused devices, Oracle could have and should have specifically identified all such accused devices,” he wrote.
Oracle can direct its infringement action only against the products it specifically named in its April disclosure, Alsup said, granting Google’s motion to strike as it related to the newly listed phones.
The judge also granted Google leave to file an additional motion to strike, which Google did last week.
In that motion, Google continued to argue that Mitchell’s expert report raised new theories that Oracle did not disclose in its initial infringement contentions.
Google said the report improperly relies on a cloning mechanism in a software layer in its phones, which is a new theory that Oracle did not disclose.
“Just because Oracle’s existing infringement theories have not been borne out does not give it a license to posit new theories, after discovery, in a reply report,” Google attorney Scott Weingaertner wrote.
Oracle responded to Google’s motion to strike on Tuesday, arguing that “the precise element of Android that Prof. Mitchell identifies as practicing a given claim limitation is the same in Oracle’s [infringement contentions].”
Mitchell’s report was not a new theory, but rather “further flesh on the bones of the original … theory,” Oracle attorney Michael Jacobs wrote.
The expert’s reference to the programming commands, labeled by Google as new theories, “is just to explain in which toolboxes the accused [infringing element] may be found,” Jacobs wrote.
Oracle also pointed out that the court “does not require identification of every evidentiary item of proof of infringement,” and urged Judge Alsup to reject Google’s critiques of Mitchell’s report.