Groklaw

Today is the due date for Dr. Cockburn's third attempt at a damages report on behalf of Oracle, and just to make sure Oracle knows what needs to be submitted, Judge Alsup has issue a reminder order. (709 [PDF; Text]) The judge wants to see not only the report but also all of the related reports and studies that support it.

To recap what this third report is to address if Oracle wants to argue these points on damages:

Just because the Oracle v. Google case has not been set for trial (and won't be until at least the time at which Oracle provides its third attempt at a damages report) does not mean the court can't move the case along, and that is what Judge Alsup has done with his latest order. In an attempt to narrow the issues to be argued at trial, Judge Alsup's latest order (708 [PDF; Text]) focuses on the copyright issues and directs the parties to provide opening briefs in which they identify each remaining claim of copyright liability and the affirmative defenses to each such claim. In addition, the parties are to identify those issues that should be resolved by the court and those underlying facts that first need to be decided by the jury.

This order adds to a somewhat lengthy litany of filings due from each party under various orders in effect at this time. The timeline for those responses is:

I'm seeing a couple of articles about an initial determination by the ITC against Barnes & Noble on its patent misuse defense, and there's quite a lot of spin on the ball, thanks to the usual suspects. They are reading a lot into a title of a sealed document. I see many misstatements.

So I'll explain a little about the process, so you can understand it. For one thing, the title of the sealed ITC initial determination is called an *initial* determination for a reason. It means it isn't final. The final one comes later. Initial determinations can be reviewed by the full ITC if the defendant petitions for review and even one Commissioner says yes.

Litigation isn't like football. It is rarely suddenly over.

Most importantly, the materials and depositions Barnes & Noble is seeking in discovery from Nokia and MOSAID have not yet arrived, although the ITC did grant Barnes & Noble's motion to ask Finland and Canada to provide them, and that's still ongoing, so there is likely more to go, even at the ITC. So with those materials not yet in hand, Microsoft's statement today that this means the defense is meritless is... well... to put it kindly premature. I mean, if a determination is made without the complete record being available, what does it mean?

Judge Alsup has considered the joint submission by the parties on the subject of patent marking as well as their supplemental filings (706 [PDF; Text]), and he has come out firing at Google. In a strongly worded order (707 [PDF; Text]) the court has strongly criticized Google for failing to live up to its obligations under the joint stipulation entered by the parties with respect to evidence of patent marking, declaring it:

[I]t is manifestly clear that Google failed to comply with its own stipulated procedure. Fortunately for Google, they will get another opportunity to comply.

Oracle and Google have now filed their joint statement on patent marking (706 [PDF; Text]) as required by the court's supplemental order of December 6 (641 [PDF; Text]) Although reading the joint statement may give one the impression that the parties' positions are far apart (and they are), that doesn't mean that the joint statement hasn't closed the gap on the marking issue. In fact, it appears to have closed the gap significantly and in Google's favor.

You will recall that after the Judge Alsup issued his December 6 supplemental order the parties filed a joint stipulation on what they were to do. That stipulation provided:

B&N and Microsoft have come to an agreement about Steve Ballmer's participation in the Microsoft v. Barnes & Noble action at the ITC. They were arguing about it, and they've now agreed that Ballmer will not have to testify live at the ITC hearing, currently scheduled for February. Instead, B&N will present designated portions of his deposition, and Microsoft's lawyers have sent a letter [PDF] to the ITC stating officially that it withdraws its motion for a protective order, attaching to the letter a proposed schedule on the parties' next steps in figuring out exactly what each side wants in the way of details. This means there will be no further motion practice on the live testimony issue. But it does mean that Microsoft's effort to have Ballmer avoid being deposed ended with him being deposed.

Meanwhile, I took some time to try to understand why Barnes & Noble is fighting with such vigor, when a patent misuse defense is so hard to win. What do they know that I didn't? I will share with you what I've learned.

The court has sided with Google on two of the three remaining claims construction issues. In an order (704 [PDF; Text]) issued yesterday the court interpreted two terms to have the meaning ascribed by Google and overruled the definition advanced by Oracle. The court has elected to leave the third term for consideration at trial, if necessary.

"Oracle America, Inc. will submit a damages report
in accordance with the terms set forth in the Court's Order."

With that short statement [PDF] Oracle advised the court today that it will undertake a third attempt to produce a satisfactory damages report and that it will do so in compliance with the orders of the court. I have no doubt they will produce the report. Whether they will be able to restrain themselves in the manner directed by the court remains to be seen. If past history is any indication, don't hold your breath.

Facing numerous filings that either seek to dismiss MOSAID's claims altogether or to block MOSAID from filing a second amended complaint, MOSAID has now responded with a raft of responses. Of course, MOSAID believes the law is on its side and that all parties should remain in the conjoined suit and all of MOSAID's new claims added in the second amended complaint should be permitted. How the court decides these issues will largely determine whether this ends up as one suit or multiple suits. In any case, don't expect MOSAID to back down.

Nokia continues to struggle mightily to get free from Barnes & Noble's discovery requests. Barnes & Noble, you'll recall, succeeded in persuading the ITC to recommend that Finland help it to do depositions of some Nokia executives, including Stephen Elop, and also get its hands on some documents that Nokia isn't willing to provide voluntarily.

So the necessary request documents were sent to Finland, and then Nokia started going wild with efforts to block. And it continues to do so, telling the court all the steps it's taken, and asking ITC to quash the Barnes & Noble motion or in the alternative to advise Finland that it can't provide any discovery until the motion is ruled on. Nokia also has complaints about what it represents to both Finland and the ITC as being Barnes & Noble's misstatements about the case.

And now Microsoft has asked the court to quash a motion to depose Steve Ballmer. It's under seal, but I'm sure we can guess at its contents. After all, we've seen companies try to keep their executives from having to get involved in litigation before, and so far, they all had to testify. Remember SCO v. IBM? Sam Palmisano had to testify because he had "unique personal knowledge", or so the judge believed. If the CEO knows things other people don't, no matter how busy he is, he will likely have to testify. I'm sure Microsoft lawyers know that, so in the alternative, they ask that he be allowed to testify by videoconference.

The parties in Oracle v. Google have been busy debating whether or not Oracle should be allowed to submit yet a third expert damages report, after the judge found the first two were ridiculously wrong. He didn't accept the way Oracle came up with such huge damages numbers, the very ones that made headlines when the case was new.

Now the judge has issued an order [PDF], an unusual one by his own admission, a conditional order that allows Oracle a kind of limited third try by its expert, Dr. Ian Cockburn, "so long as his methodology conforms to the prior rulings herein". There will be depositions, too, with possible further Daubert motions possible afterwards from both sides. This will all be on Oracle's dime: Oracle has already had two full and fair opportunities and has overreached on both.
Oracle has behaved unreasonably and should bear the burden of the consequences. So, a third try, subject to the judge's conditions, if Oracle wishes to accept them. Either this judge has the patience of a saint, or he discerns that Oracle's case is falling apart and without a damages report it has zero chance.

Do you remember in the beginning, when this case was new, and a self-described "expert" in the media was pushing the idea that Oracle would win billions and billions in damages? I snorted, if you recall, and now we see it playing out. This judge isn't buying those stratospheric Oracle numbers.

Khan Academy has provided a very helpful video, "SOPA and PIPA : What SOPA and PIPA are at face value and what they could end up enabling", explaining how SOPA and PIPA would work. It gives the lie to those supporters of the bills who claim it is targeting *only* foreign and illegal sites. Khan Academy, the famous non-profit educational site, shows how this "shoot-first, ask-questions-later" legislation could affect YouTube, Facebook or CNN, any site with user-generated content.

I hope journalists and members of Congress in particular will view the video, because he goes through the wording of the proposed bills, bit by bit. It's the best I've seen, by far. And for the rest of us, if we see journalists making mistakes in covering this story, why not let them know about this resource in a friendly way?

The Washington Post reports that Rep. Darrell Issa of California, who opposed SOPA/PIPA, has put out a statement saying, "The voice of the Internet community has been heard," and that there will be no vote in the House on the bills so detested by the entire technical and Internet communities.

"Much more education for Members of Congress about the workings of the Internet is essential," Issa says. That's exactly what Groklaw will try to help with. Education is what we do. But you can do it too, if you look for opportunities. It's free for all who wish to help. Clearly they do not understand the technical issues that almost broke the Internet, so why not help out? Most of the blacked-out sites have links to further information. XKCD, for example, has helpful links to explanations regarding some of the technical damage that these bills represented, as well as a link to a complete list of members of Congress. Your comments here are of real value too. By all means, let's help those who don't have a technical background to understand how these Internet "pipes" work, eh? I continue to suggest that each member of Congress consider adding a technical advisor to their staff, so that nothing like this disaster can happen again.

This is tech history, so I've collected screenshots for you of some of the many, many sites that are on strike today. The complete list, with links, is on SOPAstrike.com. I see media reports that Google and Wikipedia are on strike, but this strike turned out to be much larger than that.

What part of the word NO does Oracle not understand? Why is it that legal counsel for Oracle is incapable of complying with a simple, straightforward request from the court? Why does legal counsel for Oracle believe it must rehash, time and again, arguments that have already failed to satisfy the court? If you have answers for any of these questions, you might want to give Oracle a heads up.

In his January 9 order (685 [PDF; Text]) finding largely in favor of Google's request to exclude portions of the Cockburn Damages report, Judge Alsup invited each of the parties to: "submit 20-page memoranda on whether Dr. Cockburn should be allowed a third try."

As promised Microsoft has now filed its renewed motion for judgment as a matter of law [PDF; Text] in the Novell case. Nothing terribly surprising here, and we don't know what arguments Microsoft will set forth to support this motion, although Microsoft renews its arguments set forth in its original motion from November 17.

One thing that drips with irony is Microsoft's claims about what a reasonable jury would have done:

As we had predicted when Judge Alsup ruled against Oracle and substantially granted Google's request to exclude portions of the Cockburn [Oracle] damages report, if Oracle decides to attempt a third submission it will significantly delay this trial. But a third (or fourth or fifth) response by Oracle may be a two-edged sword. Each successive response is almost certain to have an impact on the trial date and will also extend the time available to the U.S. Patent and Trademark Office to continue invalidating the asserted patents. Oracle could end up doing a revised damages report only to find there has been no damage. Maybe Google should tell the court to allow Oracle all the attempts it needs to accomplish what the court asked Oracle (and Prof. Cockburn) to do last July. Judge Alsup has now confirmed this conundrum in his further ruling on the final pretrial order [PDF; Text]:

Although the Court of Appeals for the Federal Circuit does not make all documents filed with them public, thanks to the folks at Thomson Reuters, and specifically Alison Frankel, we now have access to the petition for writ of mandamus [PDF], the Oracle response, and a follow-up letter from Google to the court. All three of these documents shed greater light on the wrong Google believes Oracle and the district court have committed.

There are a number of key points that Google drives home in the petition:

• The timing of the email: It is not an email from 2006 when the alleged infringement began; it is an email from the summer of 2010 following Oracle's threat against Google.
• The prejudice shown by Judge Alsup against privileged communication of in-house counsel:

Barnes & Noble has responded to Microsoft's Motion for Leave to Reply to a Barnes & Noble document titled "Barnes & Noble's Statement of Additional Material Facts". It was under seal, as was Microsoft's motion, but Barnes & Noble's Opposition [PDF] isn't, so finally we get to find out a few more clues on what is going on.

Also, the parties have stipulated [PDF] to Microsoft dropping from the ITC investigation some of its patent infringement claims, which they say Microsoft is doing "to simplify" the investigation, "streamline the hearing", and conserve resources "in consideration of the amount of time allotted for the hearing". And maybe because they were stupid patents to begin with.

Like *that* could ever be acknowledged by Microsoft in the open air. Quite the contrary. They state that this stipulation "is also not an admission as to the merits of any claim". It just *looks* like that is what it is.

Actually, it's more likely strategic. I was reading up on patent misuse last night, and the Federal Circuit has narrowed what kinds of horrible behavior can be called patent misuse, and one requirement now is that the misuse must be associated with a particular patent. Part of the stipulation says that Barnes & Noble isn't to use the fact that Microsoft dropped these claims "as evidence in support of their affirmative defense of patent misuse" before the ITC, but they can otherwise use them. So that's what that convoluted language is probably about. I'll show you what I mean and what I found.

How many times will Oracle get to submit a proper damages report before the court says enough is enough? Apparently, more than two. The court, having now substantially rejected Oracle's (Prof. Cockburn's) second attempt, is asking both parties whether Oracle should be permitted a third attempt. Let's guess how both the parties will respond.

But a third (or fourth or fifth) response by Oracle may be a two-edged sword. Each successive response is almost certain to have an impact on the trial date and will also extend the time available to the U.S. Patent and Trademark Office to continue invalidating the asserted patents. Oracle could end up doing a revised damages report only to find there has been no damage. Maybe Google should tell the court to allow Oracle all the attempts it needs to accomplish what the court asked Oracle (and Prof. Cockburn) to do last July.

If you were a patent holder contemplating suing a bunch of companies for patent infringement, what's the first thing you would want to know? Do you think maybe it would be that you actually own the patent(s) you are asserting. That thought obviously never crossed MOSAID's mind when it brought suit back in August against Red Hat, IBM and others. (See Mosaid v. Red Hat - A new patent infringement complaint aimed at Linux).

And if that weren't bad enough, your attorneys then demonstrate they have no clue that the America Invents Act (patent reform act) was signed into law on September 16, 2011, or that pleading patent infringement requires something more than saying I own a patent and you infringe it. These guys can't get anything right.