SAN FRANCISCO—Oracle lawyers argued in federal court today that their copyright trial loss against Google should be thrown out because they were denied key evidence in discovery.

Oracle attorney Annette Hurst said that the launch of Google Play on Chrome OS, which happened in the middle of the trial, showed that Google was trying to break into the market for Java SE on desktops. In her view, that move dramatically changes the amount of market harm that Oracle experienced, and the evidence should have been shared with the jury.

"This is a game-changer," Hurst told US District Judge William Alsup, who oversaw the trial. "The whole foundation for their case is gone. [Android] isn't 'transformative'; it's on desktops and laptops."

Google argued that its use of Java APIs was "fair use" for several reasons, including the fact that Android, which was built for smartphones, didn't compete with Java SE, which is used on desktops and laptops. During the post-trial hearing today, Hurst argued that it's clear that Google intends to use Android smartphones as a "leading wedge" and has plans to "suck in the entire Java SE market."

"Android is doing this using Java code," said Hurst. "That's outrageous, under copyright law. This verdict is tainted by the jury’s inability to hear this evidence. Viewing the smartphone in isolation is a Google-gerrymandered story."

Google attorney Christa Anderson responded that Oracle asked for, and received, information about App Runtime for Chrome, or ARC, during discovery. Oracle knew that Google was trying to port Android apps over to laptops, and if it wanted to use that argument during trial, it could have, she said.

"No party had a duty to supplement discovery with matters beyond the scope of trial," said Anderson. "Our answers were appropriate and complete."

Google was considering an update to ARC, internally called ARC++. But that wasn't available when Google was answering discovery questions back in October.

"It's right now in a sort of Beta release phase," said Anderson. "It was not developed, and ready to roll, during the discovery period."

Alsup asked Hurst why Oracle couldn't just file a new lawsuit if it believed that Chrome desktops were infringing copyright and not protected by fair use. Hurst replied that she could do that, but it didn't change the fact that the just-concluded trial was "infected and tainted" by this issue.

"Google's whole pitch was 'We didn’t harm Java SE because we weren’t on desktops and laptops.' This jury was entitled to consider the context—yes, now they are on desktops and laptops. It's outrageous. They're lying to the jury! The court can't countenance this!" Hurst said.

Hurst referred to an Ars Technica review of Google Play for Chrome, published May 19, which posited that the "real shocker" about Google's new system was that it wasn't based on ARC.

"Ars Technica, the premier publication in this industry, called it a 'shocker,'" he said.

"There was no such platform available during the discovery period," responded Anderson.

Alsup is going to take it under submission and will rule later in writing. But he did leave Anderson with these words: "If I had been in your position, I would have disclosed."

Evidence and costs

While the accusations over desktops and laptops dominated the hearing today, Alsup also addressed two other matters. One was Oracle's motion for a new trial, which simply argued that Google presented so little evidence during the trial to support its case that Oracle should win, notwithstanding the jury verdict.

Oracle attorney Nathan Shaffer argued that Google was knowingly making a "market replacement" for Java-based phones, and that isn't covered by fair use. "They copied [the APIs] because they wanted to capture developers," he said.

Alsup was unimpressed by that argument.

"Don’t we let the jury decide this?" he asked. "You had all those e-mails. A jury certainly could have found your way if a jury wanted to. But the other side put in evidence the other way. Bad faith, or good faith? Isn't that the most classic jury question imaginable?"

"It would be a jury question if there was evidence to support good faith—" Shaffer began.

"There was—of course there was," Alsup said. "You can’t just put on blinders and say the other side didn’t put on a case. "Take Mr. [Jonathan] Schwartz. [Oracle attorney Peter] Bicks tried to rake him over the coals. I thought he did a pretty good cross-exam. But the jury can say, 'We like Jonathan Schwartz. We didn't like that cross-examination. Too bad, Oracle loses.' That's the way it works in trials."

Later, it was Google's turn on the hot seat when the two sides argued over the $3.9 million bill of legal costs that Google wants Oracle to pay.

"We’re arguing over a cost bill," said Alsup as two different attorneys sidled up to the podiums to argue the matter. "Do you know how many Social Security claimants I can’t rule on, while I’m ruling on your cost bill? Why can’t you resolve this on your own?"

Google lawyer Reid Mullen pointed out that technically, it was Oracle's objections to the bill of costs that caused the hearing.

"Can I go through your cost bill and deny the entire thing?" Alsup asked Mullen. "Because I think you're being greedy and asking for too much. Maybe I should just deny it based on greed. I’ve done that in other cases."

"Your Honor, we stand by the cost bill," he said. "These are discovery costs, authorized by the 9th Circuit."

Alsup told the two sides to get together and see if they can't work it out.

Google's $3.9 million cost bill includes only things like document production and court-ordered experts; it doesn't include the far more costly parts of litigation, which include lawyers' fees and their own experts.

"Go through these line items and reach an agreement," said Alsup. "Failing that, I may deny everything you want, because of greed and overreaching."

Oracle originally sued Google in 2010, saying the company violated copyrights related to application programming interfaces (APIs) in the Java programming language. After a first jury trial in 2012, Alsup found that APIs aren't subject to copyright at all, but that ruling was overturned on appeal. The dispute went to a second jury trial in May of this year, after which the jury found that Google's use of Java APIs didn't violate copyright law because it was "fair use." Oracle has said it will appeal that verdict.