(CN) - Google wants "to have its cake and eat it too" with its latest attempt to duck patent-infringement claims facing its Android operating system, Oracle claims in a new court filing. Google contends that it is not liable for any patent infringements of Oracle's Java applications prior to July 20, 2010, because Oracle did not mark its products before that date. Oracle maintains that its Java products "practice" the patents, making them patented, whether they are clearly marked or not.
Oracle lawyers Dorian Daley, Deborah Miller and Matthew Sarboraria say "there is a genuine dispute about whether Google infringes the non-method claims" and "whether Oracle's Java products are 'patented articles' under the marking statute."
"Google is trying to hedge its bets," the Oracle memorandum states. "Google has been unwilling to concede that Oracle's Java products practice each of the asserted claims, because it does not want to face the consequences that flow from that admission. Instead, it bases its motion on Oracle's contentions ... (which) are not sufficient to grant summary judgment - the law requires that there be no dispute over a material fact." (Emphasis in original.)
"Whether or not Oracle's Java products practice any of the asserted claims of the patents is an issue of fact," the opposition memo continues. "Google's motion remains premature. Because Google disputes its infringement of the non-method claims and has not established that Oracle's practice of its own patents is an undisputed fact, summary judgment is not warranted."
Oracle also filed a motion on Monday to exclude the expert testimony of two of Google's witnesses, Dr. Gregory Leonard and Dr. Alan Cox. Oracle cites numerous reasons for this motion, including that both witnesses "offer opinions unsupported by any evidence at all" and "offer opinions based on incorrect legal assumptions." The motion also seeks to preclude these witnesses from offering opinions about Oracle's expert testimony from Dr. Steven Shugan.
Oracle's legal team is supported by Michael Jacobs, Marc Peters and Daniel Muino from the Palo Alto firm Morrison and Foerster, and David Boies, Steven Holtzman and Alanna Rutherford of Boies, Schiller and Flexner in Manhattan.
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