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Intellectual Property

Jury Says Google Infringed, But It Can’t Agree On Fair Use

 SAN FRANCISCO - (Mealey's) After five full days of deliberation, federal jurors in California issued a partial verdict yesterday in the closely watched copyright dispute over defendant Google Inc.'s Android software platform (Oracle America Inc. v. Google Inc., No. 10-3561, N.D. Calif.; See 2/17/12, Page 4).

(Verdict available.  Document #16-120521-001V.)

The jury answered "yes" to the question of whether Google, while developing Android, infringed the structure, sequence and organization (SSO) of the compilable code in 37 Application Programmer Interface (API) packages found within plaintiff Oracle America Inc.'s Java software platform. 

They were unable to reach a consensus on whether Google's use of the compilable code was fair, however, leaving the question unanswered. 

Jurors At 'Impasse'

According to court records, in a note sent to presiding U.S. Judge William Alsup of the Northern District of California on Thursday, the jury indicated it was at a "possible impasse" on the question of fair use.  On Friday afternoon, after several jurors expressed their hope that a consensus could still be reached, Judge Alsup ruled from the bench that he would allow their deliberations to continue this morning in the hopes of avoiding a partial verdict.

Google use of the documentation for the 37 API packages was deemed noninfringing by the jurors, as was Google's conceded use of the source code for seven "" files, one "ACL" file and certain English language comments in a file identified as "" 

Oracle prevailed with regard to infringement by Google's conceded use of the "rangeCheck" method in files identified as "" and "," with jurors concluding that the use was not de minimis

Additionally, jurors found that although Oracle made statements that could have led Google to believe it would not need a license to use the compilable code in Java SSO, Google failed to prove it relied on the statements when it copied the SSO in developing Android.

3-Phase Trial

Oracle acquired Sun Microsystems Inc. and all of its assets in January 2010.  Sun developed the Java software platform, which includes a bundle of related programs, specifications, reference implementations and developer tools that enable users to deploy applications written in the Java programming language, in 1995.  According to Oracle, Java's ability to insulate applications from dependencies on particular processors or operating systems makes the platform uniquely useful and has yielded "many computing innovations and the issuance to Sun of a substantial number of important patents."  Among the patents at issue in the litigation are U.S. patent Nos. 6,125,447, 6,192,476, 5,966,702, 7,426,720, RE38,104, 6,910,205 and 6,061,520.

Oracle also owns copyrights in the code, documentation, specifications, libraries and other materials that make up the Java platform.  Google's Android directly competes with Java, in the form of an operating software platform for cellular telephones and other mobile devices.  The Android software development kit infringes the patents in suit and infringes Oracle's copyrights, the plaintiff argued in its September 2010 complaint.  Google answered by denying infringement and asserting patent invalidity. 

The dispute is being tried in three phases:  one regarding copyright infringement, one regarding patent infringement, and one regarding damages.  The copyright portion of the case began April 16 and featured closing arguments April 30; the patent portion of the case was scheduled to begin immediately after jurors rendered a verdict on Oracle's copyright claims.


Michael A. Jacobs, Marc David Peters and Daniel P. Muino of Morrison & Foerster in San Francisco represent Oracle.  Robert A. Van Nest, Steven A. Hirsch and Christa M. Anderson of Keker & Van Nest in San Francisco, Bruce W. Baber of King & Spalding in Atlanta, Scott T. Weingartner of King & Spalding in New York and Ian C. Ballon of Greenberg Traurig in Santa Monica, Calif., represent Google.

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