SAN FRANCISCO (CN) – As the possibility of a $1 billion damages award vanishes in the Oracle-Google copyright and patent infringement trial, glimmers of cooperation between the two tech giants emerged at last on Thursday.
U.S. District Judge William Alsup told Oracle the most the company can hope for is $150,000 in statutory damages for Google’s copyright infringement of the rangeCheck function codes. The jury found Google lifted the codes from Oracle’s Java program for its Android operating system.
Alsup suggested that the two tech giants come to an agreement on damages based on the statutory figure outside of court rather than in front of the jury in the damages phase of the trial. Both Google lead attorney Robert Van Nest and Oracle lawyer Michael Jacobs indicated a willingness to help “streamline this thing.”
“If there’s a verdict [for Oracle] in the patent phase, we’d even be willing to handle that away from the jury,” Van Nest told Alsup. He also indicated a willingness to allow the judge to award damages rather than putting it before the jury.
Oracle said nothing about that suggestion, and understandably so. Since the jury returned its mixed verdict for the copyright phase-finding that Google infringed some of Java’s codes but unable to decide whether the infringement constituted fair use-Alsup has been verbal about how little in damages Oracle is entitled to receive.
If Oracle receives anything at all. Though the jury found that Google infringed the copyrights of 37 application programming interfaces (APIs) of the Java program, whether or not the APIs are copyrightable at all is Judge Alsup’s decision to make. And in light of a European Union ruling on May 2 that functionality and programming language cannot be copyrighted-and Alsup’s request that the two sides file briefs by today regarding that decision-it’s clear that the judge is by no means convinced they can be either.
Also lurking in the background is the possibility of a mistrial. Google filed that motion yesterday, telling the court that because the jury decided only half of the two-part question over API infringement the entire question has to be retried in front of a new jury. Oracle hasn’t filed its response to that motion, but did put before the court several other possible options to avoid a mistrial. Van Nest rejected all of them immediately, telling the courtroom that the Seventh Amendment mandates a new trial.
In the meantime the patent phase of the trial continued Thursday morning with Oracle’s expert Dr. Peter Mitchell on the stand. Although Van Nest told the jury earlier this week that he expected to have the patent phase in their hands by Friday, Google hasn’t even mounted its defense yet-and there is no end in sight to Oracle’s parade of expert witnesses.
The trial is expected to last into June.