Google and Oracle Battle Over Lindholm, Schwartz Testimony

Oracle and Google have each tried to jettison potentially damaging testimony in their intellectual-property dispute over Android, as a jury deliberates over Oracle's copyright allegations and prepares to move on to the patents part of the case.

Oracle acquired Sun Microsystems in 2010, giving it control of the Java programming language. It sued Google later that year, claiming Android violated patents and copyrights it holds on Java. Google has denied wrongdoing, saying Android uses a "clean-room" Java implementation that doesn't violate Oracle's intellectual property. The case went to trial in April.

In a motion filed Sunday, Google tried to bar further testimony by Google engineer Tim Lindholm. He is the author of a controversial August 2010 email in which he wrote that alternatives to Java for use in Android "all suck," and that Google needed to negotiate a license for Java. Google tried but failed repeatedly to keep the email out of the trial.

Oracle plans to call Lindholm as its first witness during the second phase of the trial, which deals with its patent allegations. Lindholm worked at Sun before being hired by Google and his testimony will show that Google had knowledge of one of the Java patents at issue in the suit while it was developing Android, Michael Jacobs, an attorney for Oracle, told the judge in court Monday morning.

Despite Google's contentions, Lindholm was "an early member of the Android team at Google" and had "specific, detailed working knowledge" of a patent at issue in the lawsuit, Oracle said in another filing Sunday.

Google disagreed. Lindholm had "no responsibility for, or awareness of" Android's design, so any testimony about his knowledge of Sun's patents would be "highly prejudicial and confusing to the jury," Google wrote.

On Monday morning, Judge William Alsup ruled that Oracle is permitted to bring Lindholm back to the witness stand, but that it may not discuss Lindholm's controversial email again until it can provide evidence that he had direct knowledge of one of the two patents at issue in this trial.

"If you don't cover that gap you're not getting back to that email, which I know is the reason you really want to bring him back," Alsup told Oracle's attorneys.

Meanwhile, Oracle filed a motion last week asking for the court to preclude further use of testimony from former Sun Microsystems CEO Jonathan Schwartz.

Earlier in the copyright phase of the trial, a Google attorney asked Schwartz on the stand whether he had made a decision as to whether Sun should sue Google over its use of Java for Android.

"Yes," Schwartz replied. "We didn't feel we had any grounds."

Alsup expressed his irritation Monday at that testimony and said Oracle's attorneys should have raised an objection when the statement was made. The question called for a yes or no answer, Alsup said, and instead Schwartz gave a statement that strayed into "attorney-client material" that the jury should not have heard.

"If there had been an objection I would have excluded that sentence in a heartbeat. I believe that should never have come out in the presence of a jury," Alsup said.

He said he would not strike Schwartz's statement from the record, but that he may instruct the jury that "it's up to them to decide whether Sun had grounds to sue on, not Mr. Schwartz."

He also told Google's attorneys that they can't refer to Schwartz's statement in their opening statement for the patents phase of the trial.

Alsup has already said he thought testimony from both Lindholm and Schwartz would be "peripheral" to the patents phase of the trial, and last week he asked the two sides if they couldn't "make a deal" to exclude both men's testimony.

Robert Van Nest, an attorney for Google, told the judge Monday he had proposed such a deal but that Oracle had not accepted it.

The jury in the case, being held at the U.S. District Court for the Northern District of California in San Francisco, is currently deliberating in the copyright phase of the trial. On Friday, they told the judge they had reached a partial verdict.

The patents phase of the trial will begin when the jury has made its decision over the copyright allegations. A final phase will address what damages Oracle will receive if it prevails on its patent or copyright claims.

(James Niccolai in San Francisco contributed to this report.)

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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