Experts: Oracle, Google Need to Focus on People as Well as Patents

Both Oracle and Google would be well-advised to center their cases around people along with a painstaking discussion of patents once their lawsuit over the Android mobile OS goes to trial, according to experts.

Oracle sued Google in August 2010, claiming that Android was in violation of a number of patents and copyrights it holds on Java. Google has denied wrongdoing, saying Android employed a "clean-room" implementation of Java that didn't violate any Oracle intellectual property.

"Patents regarding software code are extremely difficult cases to put to a jury," said Paul Neale, CEO of New York-based DOAR Litigation Consulting. "The plaintiffs are at a disadvantage in this instance. You have to get into the details and compare the patents, and try to draw the distinction. But at the end of the day, trying to interpret patent drawings and explaining the differences between them is very difficult."

The case is really split between technical issues over patents and copyrights and "what actually happened," Neale said. "Juries want to know what happened between people."

Offering clear potential for such a narrative is the controversial email authored by Google engineer Tim Lindholm shortly before Oracle filed suit in August 2010.

"What we've actually been asked to do by Larry and Sergey is to investigate what technology alternatives exist to Java for Android and Chrome," Lindholm wrote, referring to Google co-founders Larry Page and Sergey Brin. "We've been over a hundred of these and think they all suck. We conclude that we need to negotiate a license for Java."

Google has repeatedly tried and failed to keep the email out of the case on a number of bases, including that it was subject to attorney-client privilege.

It's not yet clear whether the email will come up for discussion at the trial. Google tried repeatedly without success to keep the email out of the proceedings, and recently filed a petition with a U.S. appeals court over it.

Juries participating in mock trials have shown a great deal of interest in the content of email correspondence, said Scott Daniels, a partner and intellectual-property attorney with the Washington, D.C., law firm Westerman, Hattori, Daniels and Adrian, which has conducted many such proceedings.

He echoed Neale's belief that effective patent litigation has to include discussions of human interactions.

Daniels watches other patent trials as part of his job. He recalled a case he attended in Brooklyn because his firm's client believed it was next to be sued. Daniels wanted to view the jury and gauge their reactions.

"There were two women who took copious notes the first two days while the rest napped, but by the third day, they were napping too," he said.

"Inevitably, [jurors] begin to see which expert they regard as trustworthy, and which lawyers they like, and so on," Daniels said. "You really have to personify the technical issues and put some good-guy, bad-guy drama to the whole thing. Otherwise, it's just a mash."

The drama need not only focus on who was allegedly good or bad. Both the plaintiff and alleged infringer also need to "show their invention was difficult to create and took time and effort, and that those risks eventually paid off," he said.

There are typically two kinds of expert witnesses in patent cases, according to Daniels. There's the "college professor" type who brings communication skills well-honed by years of teaching to undergraduate students, and the "hands-on guy, who can deliver a knockout punch for you at the right moment," he said. Oracle vs. Google will probably feature more of the former, Daniels said.

While Google and Oracle attorneys will seek to tell their sides of the story as clearly as possible, they can't get too casual, Daniels said

"[Oracle will] have to be very specific. You do need to say the right things to fit the legal standard for finding infringement," he said. The same goes for Google when it argues Oracle's claims are invalid, he added. "There's that aspect of the presentation that you just can't be folksy about or generalize."

It's not clear when the trial will begin. Last week, Judge William Alsup ruled that no trial date would be set until Oracle submits an acceptable damages methodology. Previously, Alsup had said the trial could begin as soon as March 19.

Chris Kanaracus covers enterprise software and general technology breaking news for The IDG News Service. Chris's e-mail address is Chris_Kanaracus@idg.com

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