Google and Oracle negotiate potential damages

Google has proposed to pay $2.8 million in damages, should the court find it infringed two Oracle patents

In the runup to the trial date for their dispute over whether Google's Android mobile OS infringes on Oracle's Java patents, Google and Oracle are negotiating over potential damages.

In a document filed on Tuesday, Oracle responded to a number of proposals Google set forth aimed at speeding up the trial, including a suggestion to cap patent-infringement damages at around US$2.8 million.

Should Google be found to infringe, it said it would pay damages of $2.72 million on one of the patents and $80,000 on the second. In exchange, Oracle would agree not to seek additional damages for the infringement.

Google also said that for use of one of the patents, it would pay 0.5 percent of Android revenue through the end of this year, when the patent expires. It would pay Oracle .015 percent of Android revenue through April 2018, when the second patent expires.

In both cases, Oracle said the numbers need to be adjusted for multiple issues such as to include devices not cited in the suit.

In addition, Oracle said it is not willing to waive its right to seek an injunction, which Google suggests it should. "Google proposes that the trial be shortened by suggesting that Oracle accept patent damages that are lower than Oracle contends are appropriate, and waiving any right to seek injunctive relief for Google's patent infringement. Oracle cannot agree to unilaterally give up its rights, on appeal and in this Court, to seek full redress for Google's unlawful conduct," Oracle wrote in the filing.

Oracle's own damages expert valued the two remaining patents at $4.15 million after adjustments, Oracle wrote.

This kind of last-minute negotiation is common in such trials, said David Mixon, an attorney with Bradley Arant Boult Cummings who has been following the mobile patent wars. "What they're trying to do is give each side some degree of certainty," he said. "The advantage to the defendant is they know the maximum and minimum liability. The advantage to the plaintiff is they know they'll be getting something," he said. Sometimes the parties may even agree not to appeal. That could benefit a plaintiff who wins but worries about losing later on appeal, he said.

While it appears that Oracle is rejecting this proposal from Google, the companies are likely to continue to negotiate, he said.

A separate issue in the dispute is over whether Google has infringed Oracle copyright. Oracle filed the suit in 2010, charging Google with patent and copyright infringement in Android. Google denies wrongdoing.

The suit is scheduled to go to trial on April 19 in the U.S. District Court for the Northern District of California.

Nancy Gohring covers mobile phones and cloud computing for The IDG News Service. Follow Nancy on Twitter at @idgnancy. Nancy's e-mail address is Nancy_Gohring@idg.com

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