Oracle patent claims versus Google sent to jury

By Dan Levine

SAN FRANCISCO (Reuters) - A California jury began another round of deliberations on Tuesday in a high profile trial over allegations that Google's Android mobile platform violates Oracle's intellectual property rights.

The jury has already wrestled with Oracle's copyright claims against Google and delivered a partial verdict last week. Now, jurors are mulling Oracle's patent claims, but the potential patent damages appear far less than what is involved in the copyright allegations.

Oracle sued Google in August 2010, saying Android infringes on its intellectual property rights to the Java programming language. Google says it does not violate Oracle's patents and that Oracle cannot copyright certain parts of Java, an "open-source," or publicly available, software language.

The trial in San Francisco federal court has been divided into three phases: copyright liability, patent claims, and damages.

In court on Tuesday, attorneys for both companies made their closing arguments on patents. Oracle attorney Michael Jacobs said it does not matter that Oracle's patents only cover certain small parts of Android.

"You don't avoid infringement because Android is big," Jacobs said, adding that Google's conduct was reckless.

Google attorney Robert Van Nest said the company designed Android from scratch, and that there is no evidence Google encountered the patented technology until Oracle threatened litigation.

"There's not a single document, not an email," Van Nest said.

While Oracle is seeking roughly $1 billion in copyright damages, the patent damages in play are much lower. Before trial, Google offered to pay Oracle roughly $2.8 million in damages on the two patents remaining in the case, covering the period through 2011, according to a filing made jointly by the companies.

For future damages, Google proposed paying Oracle 0.5 percent of Android revenue on one patent until it expires this December and 0.015 percent on a second patent until it expires in April 2018. Oracle rejected the settlement offer.

During trial, U.S. District Judge William Alsup revealed that Android generated roughly $97.7 million in revenue during the first quarter of 2010.

The jury found last week that Oracle had proven copyright infringement for parts of Java. But the jury could not unanimously agree on whether Google could fairly use that material.

Without a finding against Google on that fair use question, Oracle cannot recover damages on the bulk of its copyright claims. Alsup has not yet decided on several legal questions that could determine how a potential retrial would unfold.

The case in U.S. District Court, Northern District of California, is Oracle America, Inc v. Google Inc, 10-3561.

(Reporting By Dan Levine; Editing by Tim Dobbyn)

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Google wants authors group out of NY library case

NEW YORK (AP) -- Google Inc. urged a judge Thursday to toss The Authors Guild and an organization representing photographers out of 6-year-old litigation over the future of the world's largest digital library, a move that would force authors and photographers to individually fight the online search engine giant.

Google attorney Daralyn Durie told Judge Denny Chin in federal court in Manhattan that authors and photographers would be better off fending for themselves because their circumstances varied widely, especially since the copyright issue for authors involves the display of small snippets of text.

"The question of ownership is very murky because of the contractual relationships between the parties and because it is conceded that in many cases authors receive no royalties from the publisher for these displays," she said.

Joanne Zack, a lawyer for The Authors Guild, countered that the judge should certify the authors as a class because millions of them would not have the money to go to court and because the potential financial reward for doing so would not be high enough to make it practical. She said they also might be intimidated fighting a company as large as Google.

"This action does cry out for mass litigation to adjudicate the mass digitization," she said. "This is a classic case for a class action because we're talking about blanket policies that affected millions of people and we're talking primarily about legal issues — infringement, fair use — that can be determined based on common questions of law and fact."

She called it "a terrible burden on the courts if each individual author chose to litigate, and, of course, Google hopes that nobody will."

The judge agreed that Google is "hoping that individual authors won't come forward."

Chin did not immediately rule on what the law demands, but he questioned whether Google really wanted to face multiple lawsuits from authors and photographers.

"It would take forever. It just seems to make sense to address that on a group basis whether through an association or whether through a class action," the judge said.

The arguments came a year after Chin rejected a $125 million deal that would have settled the case. He tossed out the settlement between Google and representatives of The Authors Guild and publishers after studying objections from Google rivals, consumer watchdogs, academic experts, literary agents, the Department of Justice and even foreign governments.

A challenge to The Authors Guild and the American Society of Media Photographers Inc. as litigants seemed unusual so many years after lawsuits were first filed, Chin said. The Authors Guild sued in 2005. The photographers' lawsuit was filed two years ago.

"Now all of a sudden Google is saying, 'You don't have standing,'" the judge said.

Durie responded that negotiations had consumed most of the time since lawsuits were first filed, and that it was not unusual to put off pretrial challenges while talks were going on.

Although negotiations appeared to have broken down with the authors, they were still proceeding with publishers and the photographers. Attorney James McGuire said outside court on behalf of the photographers: "We talk, but I wouldn't characterize them as serious."

In court, McGuire said it was "somewhat unfair, inconsistent and respectfully hypocritical for Google after willy-nilly scanning 20 million books and 20 million covers in our view without regard to individual rights to come back and say ... the burden is on us."

In court papers, Google said the groups representing authors and photographers "are not owners of the copyrights asserted in this case, and the associations do not possess the facts about copyright ownership, individual economic impact, or the other individualized questions required of a plaintiff in a copyright litigation matter where ownership and fair use are at issue."

Google already has scanned more than 20 million books for the project. Under the original agreement, Google had planned to put about 130 million titles into its digital library.

In rejecting the settlement last year, Chin noted that many objections would vanish if the library only consisted of works in which authors and publishers had granted their permission rather than a system in which books were included unless Google was informed that an author or publisher objected.

The judge has supported the overall goal, saying a digital universe for books would let libraries, schools, researchers and disadvantaged populations gain access to far more books, would help authors and publishers find new audiences and new sources of income and would allow older books — particularly those out of print — to be preserved and given new life.

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Summary Box: Oracle spars with Google in trial

LEGAL SHOWDOWN: Oracle delivered its opening statement in a federal court trial revolving around its allegations that Google stole a key piece of programming technology called Java to build the Android operating system that now powers more than 300 million smartphones and computer tablets.

FIRST JABS: In an hour-long presentation before a jury Monday, Oracle Corp. lawyer Michael Jacobs highlighted a series of internal emails indicating Google's top executives knew the company needed pay licensing fees to use Java in Android. A licensing agreement was never worked out.

NEXT ROUND: Google Inc.'s lawyers will counter with their opening statement Tuesday.

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Oracle skewers Google as Android trial opens

SAN FRANCISCO (AP) -- Oracle began Monday trying to convince a jury that Google's top executives have long known that they stole a key piece of technology to build the Android software that now powers more than more than 300 million smartphones and tablet computers.

The unflattering portrait of Google Inc. was drawn by Oracle lawyer Michael Jacobs in the opening phase of a complex trial pitting two Silicon Valley powerhouses in a battle delving into the often mind-numbing minutiae of intellectual property and computer coding.

"We will prove to you from beginning to end ... that Google knew it was using someone else's property," Jacobs said near the end of his hour-long opening statement.

Google's lawyers will counter with their opening statements Tuesday.

The showdown in a San Francisco federal court centers on Oracle's allegations that Google's Android software infringes on the patents and copyrights of Java, a programming technology that Sun Microsystems began developing 20 years ago.

Oracle Corp., a business software maker based in Redwood Shores, acquired the rights to Java when it bought Sun Microsystems for $7.3 billion in January 2010.

Google Inc., the Mountain View-based Internet search leader, has steadfastly denied Oracle's allegations since the lawsuit was filed seven months after the Sun deal closed.

The impasse has left it to a 12-member jury to resolve the dispute in a trial scheduled to last as long as 10 weeks. U.S. District Judge William Alsup devoted most of Monday's session to picking the jury, leaving only enough time for Oracle to lay out the framework for its case.

Oracle is seeking hundreds of millions of dollars in damages and an injunction that would force Google to pay future licensing fees or find an alternative to Java to keep its Android system running smoothly.

At one point in the lawsuit, Oracle estimated it might be owed as much as $6.1 billion. But Alsup has whittled the case down in a way that has substantially lowered the size of the potential payout if Google loses.

In a sign of how far apart the two sides are, Google last month said it would be willing to pay $2.8 million plus a tiny percentage of its future revenue if the jury decides Android infringed on two Java patents. Google hasn't publicly estimated what it thinks its liability might be if the jury decides Android violated 37 Java programming copyrights as alleged by Oracle.

The copyright disagreement — the most important point of the case — will be covered in the first phase of the trial followed by the patent dispute. If necessary, a third phase will be devoted to how much money Google owes Oracle.

Much of the evidence presented during the trial will delve into highly technical fare likely only to appeal to programming geeks and patent-law aficionados. However, there may be dramatic interludes that lift a veil on the inner workings of two of the world's most influential technology companies.

The intrigue will include testimony from the two companies' multibillionaire CEOs, Oracle's Larry Ellison and Google's Larry Page. Oracle indicated on Monday that it could call Ellison to the stand as early as Tuesday.

Several other industry luminaries, including former Google CEO Eric Schmidt and former Sun Microsystems CEO Jonathan Schwartz, are also on the list of potential witnesses.

Jacobs focused much of his opening statement on excerpts in internal emails that suggest Google knew it needed to pay licensing fees to use some of the Java technology that went into Android, a project that began in earnest in 2005 when Google bought a startup run by Andy Rubin. The first phone running on Android software didn't go on sale until October 2008, about 15 months before Oracle bought Sun Microsystems and stepped up the attempts to make Google pay up for the Java technology.

Oracle cited an October 2005 email from Rubin to Page as an early sign that Google realized it probably would have to pay Sun for using Java in Android.

"My proposal is that we take a license that specifically grants the right for us to Open Source our product," Rubin wrote.

Jacobs pointed to a May 2006 email from Schmidt to Rubin as an indication that Google knew it might need to seek other solutions for Android if it couldn't work out an agreement with Sun.

"How are we doing on the Sun deal?" Schmidt asked in his message. "Its (sic) it time to develop a non-Java solution to avoid dealing with them?"

By August 2010, Google still hadn't been able to find any satisfactory alternatives to Java, according to an email that Google engineer Tim Lindholm sent to Rubin.

"We have been over a bunch of these, and think they all suck," wrote Lindholm, who worked at Sun Microsystems before joining Google. "We conclude that we need to negotiate a license for Java under the terms we need."

The lack of a licensing agreement ultimately didn't deter Google, Jacobs told the jury, because the company realized it needed a mobile software system to preserve its digital search-and-advertising empire as more sophisticated phones enabled more people to surf the Internet while they were away from their desktop computers. Java provided Google with a springboard into mobile computing because 6 million software programmers were already familiar with the technology and could easily create applications that would run on Android, Jacobs said.

Although Google doesn't charge device makers to use Android, the company makes money from some of the mobile advertising and mobile applications sold on the system. Google has said its mobile advertising revenue now exceeds $2.5 billion, but it hasn't specified how much of that money comes from Android-powered devices.

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Summary Box: Google CEO grilled in Oracle trial

THE WITNESS: Google CEO Larry Page spent nearly an hour in a federal courtroom Wednesday, called as Oracle's witness in its legal dispute with Google.

THE ADVERSARY: He was grilled by David Boies, a tenacious lawyer who made headlines for grilling former Microsoft Corp. CEO Bill Gates in an antitrust lawsuit filed by the U.S. government in 1990s. Boies is working for Oracle in this trial.

PERFORMANCE: The taciturn Page often looked uncomfortable. He frequently said he couldn't remember seeing some of the internal Google documents that Oracle is using to build its case.

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Developments in Oracle vs Google legal case

Oracle Corp. has accused Google Inc. of patent and copyright infringement. Much of the dispute is over Google's Android, the mobile operating system that now powers more than more than 300 million smartphones and tablet computer

Here are key developments in that case:

Jan. 27, 2010: Oracle closes deal to buy Sun Microsystems and gets the Java computer programming language and related technology that is central to the lawsuit.

Aug. 12: Oracle sues Google in U.S. District Court in San Francisco. Oracle says Google's Android system for mobile phones infringes on its patented Java technology.

Sept. 12, 2011: The CEOs of both companies are ordered to attend a court-supervised attempt to settle a lawsuit. The attend sessions on Sept. 19 and 21 with no settlement reached.

March 27, 2012: In a joint statement, the two companies indicate they are far apart of key matters. Oracle is seeking hundreds of millions in damages, while Google believes it won't have to pay more than a few million dollars.

Monday: Trial begins, with the copyright issues central to the first phase. In opening statements, Oracle says Google's top executives have long known that they stole a key piece of technology to build Android.

Tuesday: Google's opening statements frame the case as Oracle's response to its own failure to build mobile software. Oracle CEO Larry Ellison admits under questioning by Google that Oracle wanted to compete with Android before deciding instead to sue Google. Google CEO Larry Page also takes the stand, sporting a suit and tie that is a departure from his usual casual attire.

Wednesday: Page returns to the witness stand. The taciturn Page often looked uncomfortable, as he deflected questions about his role. He frequently said he couldn't remember seeing some of the internal Google documents that Oracle is using to build its case.

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Developments in Oracle vs Google legal case

Oracle Corp. has accused Google Inc. of patent and copyright infringement. Much of the dispute is over Google's Android, the mobile operating system that now powers more than more than 300 million smartphones and tablet computer

Here are key developments in that case:

Jan. 27, 2010: Oracle closes deal to buy Sun Microsystems and gets the Java computer programming language and related technology that is central to the lawsuit.

Aug. 12: Oracle sues Google in U.S. District Court in San Francisco. Oracle says Google's Android system for mobile phones infringes on its patented Java technology.

Sept. 12, 2011: The CEOs of both companies are ordered to attend a court-supervised attempt to settle a lawsuit. The attend sessions on Sept. 19 and 21 with no settlement reached.

March 27, 2012: In a joint statement, the two companies indicate they are far apart of key matters. Oracle is seeking hundreds of millions in damages, while Google believes it won't have to pay more than a few million dollars.

Monday: Trial begins, with the copyright issues central to the first phase. In opening statements, Oracle says Google's top executives have long known that they stole a key piece of technology to build Android.

Tuesday: Google's opening statements frame the case as Oracle's response to its own failure to build mobile software. Oracle CEO Larry Ellison admits under questioning by Google that Oracle wanted to compete with Android before deciding instead to sue Google. Google CEO Larry Page also takes the stand, sporting a suit and tie that is a departure from his usual casual attire.

Wednesday: Page returns to the witness stand. The taciturn Page often looked uncomfortable, as he deflected questions about his role. He frequently said he couldn't remember seeing some of the internal Google documents that Oracle is using to build its case.

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Court revives Rosetta Stone suit vs Google

By Terry Baynes

(Reuters) - A federal appeals court on Monday revived the bulk of language-software maker Rosetta Stone Inc's trademark infringement lawsuit against Google Inc.

The opinion is the first appellate decision to address whether Google's sale of other companies' trademarks for sponsored links could give rise to liability for trademark infringement.

In a lawsuit filed in 2009, Rosetta Stone accused Google of committing trademark infringement by selling the language-software maker's trademarks to third-party advertisers for use as search keywords. A Virginia district court had dismissed the case in 2010, finding that the sale of the keywords was not likely to confuse consumers.

But U.S. Court of Appeals for the 4th Circuit overturned most of the lower court's ruling, reviving claims that Google committed direct trademark infringement and diluted the Rosetta Stone brand.

"A reasonable trier of fact could find that Google intended to cause confusion in that it acted with the knowledge that confusion was very likely to result from its use of the marks," Chief Judge William Traxler wrote for the three-judge panel.

Rosetta Stone accused Google of profiting by allowing rivals to purchase trademarked keywords that generate links to their sites when users enter those search terms. Google allows advertisers to buy the top "sponsored link" ad on search result pages. Rosetta Stone argued that people searching for its products on Google were being redirected to competitors and software counterfeiters.

The language-software maker presented deposition testimony of five consumers who attempted to buy bogus Rosetta Stone software after Google started allowing use of trademarks in the text of sponsored links in 2009.

That evidence persuaded the 4th Circuit panel to revive the trademark infringement and dilution claims. The panel also cited an internal Google study finding that even sophisticated consumers were sometimes unaware that sponsored links were advertisements.

The appeals court also reinstated Rosetta Stone's trademark dilution claims. The lower court had granted summary judgment in Google's favor, finding that the Internet giant was not trying to pass off its own goods and services as Rosetta Stone's. But that fact could not defeat the dilution claims, the 4th Circuit ruled.

The panel directed the lower court to reconsider when Google first appeared to dilute the Rosetta Stone trademark, and whether that trademark was "famous" at the time.

Google and its lawyer, Margret Caruso of Quinn Emanuel Urquhart & Sullivan, did not immediately respond to requests for comment.

"We're very pleased with the opinion, and we think it is an important precedent," said Rosetta Stone's lawyer Cliff Sloan of Skadden, Arps, Slate, Meagher & Flom.

The case is Rosetta Stone Ltd v. Google Inc, U.S. Court of Appeals for the 4th Circuit, No. 10-2007.

(Reporting By Terry Baynes; Editing by Gerald E. McCormick and Tim Dobbyn)

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