February 21, 2012, 9:13 AM —
Oracle has quietly removed the last claim of one of the patents it has accused Google of violating, and sharply reduced the amount of damages it estimates Google's alleged infringement of Oracle's Java software.
Oracle acquired Sun Microsystems' Java technology when it bought the company in 2010. Instead of licensing Java from Oracle to use in Android, Google developed a "clean room" version of the Java virtual machine, Dalvik, for Android instead. Oracle has charged--through patents and copyrights--that Dalvik deliberately infringes on Java anyway, despite efforts to build Dalvik from scratch.
According to legal watchdog site Groklaw, Oracle withdrew claim 14 of U.S. Patent No. 6,192,476 (the '476 patent), which is the last claim Oracle was holding on to for this particular patent, which in effect removes the entire patent from the case. The validity of the patent as a whole was in much doubt, wrote Groklaw founder Pamela Jones:
"The USPTO in December issued a final rejection of 17 of the 21 claims of this '476 patent, anyway, including all seven of the patent's independent claims, and while Oracle has until February 20 to appeal, the handwriting is on the wall. Whatever it decides about an appeal, claim 14, and hence patent '476, is no longer in this litigation."
There are, of course, additional patents being brought against Google by Oracle, which could--if Google is found to have infringed--bring millions of dollars in damages against Google.
Yeah, that's right: millions. Not billions-with-a-pinky-in-the-mouth amounts as was initially reported back in June. Let's watch the shrinking number, shall we?
Originally, Oracle claimed Google owed Oracle up to $6.1 billion (in a range from $1.4 billion to $6.1 billion. That was in June 2011.
By September, after a couple of days of settlement hearings, that number was knocked down to "just" $2 billion, because Oracle's claims weren't supported by that thing you need in court to actually prove something… what was it called? Help me out here, Bloomberg journalist Karen Gullo:
"Google, which said Oracle's damages estimate includes $1.2 billion in damages for unjust enrichment in 2012 alone, asked a federal judge to exclude parts of the calculation that it said aren't supported by the evidence."
Evidence! That was it.
If you have been following the case at all, as most fans of Groklaw have surely been doing, you will know that Oracle has had a dickens of a time getting its claims of damages settled by the presiding judge, the Hon. William Alsup. It is now on its third try for getting a damages claim put together, which according to Groklaw's Jones is unusual--and now, it seems, even that claim has serious truthiness problems.
The first two damages reports--the $6.1 billion and $2 billion monstrosities--were pulled together by Boston University professor Iain Cockburn, who is acting as Oracle's expert in the case.
In this third expert damage claim report attempt, Alsup instructed Oracle to try again, and use $100 million as the baseline for its damage claims, and go up and down from there. But, even though Cockburn included two alternate ways of calculating damages, Google has maintained that he still overestimated, writes Jones:
"This third effort is also flawed, Google maintains, and 'riddled with fatal errors.' Like guesswork. And inflated and unjustifiable numbers. 'Yet again, he has violated the Court's express instructions and overstated Oracle's damages as a result.'
"Yet, in the end, even calculating that way, he comes up with a proposed number that is nothing near the multiple billions that made headlines when this case was first announced, the expert now valuing the patents at $57.1 million as the highest proposed figure. He values the copyrights at the highest end at between $52.4 million and $169 million…"
Alsup has not, of course, had time to act on these new motions of dismissal from Google, so we will have to see what he thinks about Oracle's new damages claims. It's a foregone conclusion that Google doesn't think that much of them. Google maintains the judge has instructed Cockburn to make damage estimates on a claim-by-claim basis, which they insist he has yet to do.
But, let's say for argument's sake that the judge does accept these claims as good enough. Adding up the total claims for patent and copyright infringement damages from this third report, you only come up with $226.1 million. That just 3.7% of the original $6.1 billion. And that's damages claimed… no doubt Google could, if it wanted to, settle for far less than that.
Definitive damages will need to be figured out, because Alsup has indicated he will not set a trial date for the case until an acceptable damages report is created.
This tactic of going for the big Headlines of Doom to bully defendants into settling fast before that whole pesky evidence thing rears its ugly head seems to not be working in this case, nor in the patent infringement case Microsoft brought up against Barnes & Noble for alleged violations in its Nook eReader. There, too, things seem to be falling apart for Microsoft's alleged slam-dunk, as the bookseller defiant repeatedly demonstrates.
It would be nice if this lesson could be learned by other vendors that get approached by patent trolls seeking to shut their business down through litigious shakedowns.
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