Oracle & Google Debate Road Map

SAN FRANCISCO (CN) - Legal teams in the Oracle-Google infringement case huddled early Wednesday morning to agree on a roadmap for the damages phase of the trial, but the roadmap could just as easily be charting the quickest route out of Judge William Alsup's courtroom.

As the jury deliberated patent infringement for a second day, Google's Bruce Baber and Oracle lead attorney David Boies sat down and worked out the deal which eventually became the order Alsup signed. The judge wryly thanked the lawyers for "being so brilliant and solving at least one piece of this problem."

While the judge has expressed substantial skepticism over Oracle's claims to a large monetary award, Google would, like any corporation on the defense, be looking for a cheap way out of the courtroom. A settlement would foreclose an appeal and staunch the flow of red ink tied to legal bills.

Given the intensity of the litigation, and the high reputations of the lawyers, Google's legal bill for the trial has without doubt already run to millions of dollars.

On the other side, Oracle is arguing in front of a judge who has expressed skepticism over their claim of infringement and who called out their nationally famous lead lawyer David Boies essentially for trying sell him a bill of goods.

Judge Alsup who has a mathematics degree and knows how to and does write computer code told Boies that the simple string of code for which the jury had found infringement is comprised of extremely ordinary and simple programming.

"I've written blocks of code like rangeCheck a hundred times before," said the judge. "I could do it, you could do it. The idea that someone would copy that when they could do it themselves just as fast -- it was an accident. There's no way you could say that was speeding them along to the marketplace. You're one of the best lawyers in America, how could you even make that kind of argument?"

The outcome of the trial rests half in the hands of the 11-person jury, and half in the hands of Alsup himself. As the jury decides whether Google infringed two of Oracle's patents, the U.S. District judge wrestles with his portion of the first phase: Whether application programming interface (API) codes are even copyrightable at all. Alsup said Tuesday he doesn't expect to have that answer before next week.

The jury returned a mixed verdict on the copyright issue. While the 12 of them-one juror was dismissed Tuesday for an unexcused absence-agreed that Google infringed Oracle's copyrights on the APIs, they couldn't agree if the infringement constituted fair use. It also found that Google stole nine lines of code from the rangeCheck function and some decompiled test files, but cleared the tech giant of Oracle's other allegations.

Google moved for a mistrial on the API infringement. And according to Wednesday's agreement, if Alsup finds that APIs can be copyrighted, the company will press that motion and demand that infringement and fair use be tied together and tried in front of a new jury. Both Google and Oracle agree that the current jury is done hearing about copyrights.

Oracle doesn't want the copyright issue retried, obviously-the company won a partial victory the first time around. For its concession on that point, and should it win another copyright infringement verdict from the new jury, Oracle gets to go after Google's infringer's profits from the rangeCheck and decompiled files.

Which is another murky mess in itself, since Google gives Android away for free and profits are probably buried somewhere else, like in the use of the Google search engine. Unfortunately for Oracle, the stipulation limits both sides to evidence and expert witnesses already agreed to in the first jury trial, and Oracle never did get answers to its questions about profits in the first or second phases.

On its face the stipulation largely favors Google. Which leads back to the quickest way out of Alsup's courtroom, and the first step in that journey is Alsup's decision that the structure, sequence and organization (SSO) of APIs cannot be copyrighted.

In a May 14 hearing on infringer's profits-at which Boies argued that the reason Google lifted Java codes for the Android operating system was to get the phones out as quickly as possible - the judge commented that he has written blocks of code like rangeCheck "hundreds of times before," and reminded Boies of the witness who testified that a high school student could write rangeCheck. Boies was forced to admit he couldn't write the program in six months.

It wasn't the first time Judge Alsup had spoken critically of Oracle's contentions, nor was it the first time he'd expressed incredulity that lines of code might be copyrightable at all. He even took Oracle attorney Michael Jacobs to task for comparing computer code to paintings, literature and music during the copyright infringement phase.

But Alsup is also enigmatic and inscrutable. Just when it seems like he's not paying any attention at all, he drops a bombshell like "I'm a programmer." It's easy to imagine Alsup will rule against copyrighting APIs. It's just as easy to see him allowing the issue to unfold in open court just as he's done since the suit was filed nearly two years ago.

Fortunately for Oracle, the jury already made its decision on rangeCheck and the decompiled files. Because if Alsup decides that the SSO cannot be copyrighted, both parties agree to waive their right to a damages phase. Oracle waives its claims for actual and infringer's profit damages, and the judge hands Oracle a statutory victory-perhaps enough cash to pay a few of its legal bills.

It's a certainty that both companies will head to the nearest federal appeals court if that happens. But what was once billed as the landmark tech trial that promised a billion dollar payday will end with a whimper and - for companies like Google and Oracle anyway - the cash equivalent of pocket lint.

Of course, the jury is still deliberating patent infringement. And if they find infringement there, the entire stipulation is off the table and both Google and Oracle will take their chances with the 11 remaining jurors once more in a damages phase. The jury was silent Wednesday, a far cry from the copyright phase where they asked for clarifications, materials, a DVD player, and proclaimed themselves deadlocked in the third day of deliberations.

They resume their deliberations Thursday morning. And Oracle and Google have nothing to do but wait for them - and Judge Alsup - to make up their minds.

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