Although Oracle's lawsuit against Google is now well into the patent phase, several motions have been filed over the last few days that pertain to the matters of alleged copyright infringement from the earlier phase of the trial. Google has also moved to drop the damages part of the case, which would leave the judge to decide applicable damages by himself.

Google's lawyers have put in a motion for a mistrial based on the fact that the jury did not come to a decision on both parts of one of the questions before it. It was asked whether copyright infringement had taken place and whether Google had shown that the infringement was actually allowed under the principle of fair use; it answered yes to the first part but could not decide on the second part.

Judge William Alsup has not yet decided on this mistrial motion and it would only make a difference if he decides that APIs are actually copyrightable under the law; the jury were told to assume that they were for the purposes of giving a verdict. The API copyright issue will be ruled on by the judge at the conclusion of the trial since it is a question of law and can not be opined on by the jury. If that decision comes out in Google's favour, the motion for mistrial would be moot as the jury decision was based, as instructed by the judge, on the assumption that APIs are copyrightable. Oracle replied to the motion with a brief of their own, requesting that, if a retrial were to happen, it should only be concerned with the copyright part of the lawsuit.

Google has also filed another motion for the damages part of the lawsuit to be dropped – this portion of the trial is scheduled after the patent phase. Judge Alsup had earlier told Oracle that the maximum amount of statutory damages it would be able to claim from the copyright infringements was $150,000. Google argues that it would not be good use of the jury's time to deliberate on such a relatively small amount. According to Google lawyer Van Nest, damages for the patent infringement (if Google were to be found to be infringing) would be around $100,000 for one of the patents and up to $4 million for the other. These figures are based on what all of the three experts expected to appear before the court have agreed on, says Van Nest.

Dropping the damages part of the lawsuit would mean Judge Alsup, not the jury, would decide on the damages applicable. The judge has indicated that this may be possible, but that the question whether Google had infringed wilfully will then have to be moved into the current patent phase of the suit. If Google is found to have infringed wilfully, Oracle would be eligible for up to three times the amount of damages.

The question whether Google had infringed wilfully also played a big part during the proceedings concerning the two patents left in the lawsuit. Andy Rubin, Google's head of Android development, denied ever having asked anyone on the Android team to investigate Sun's patent portfolio. Being asked by Oracle counsel Michael Jacobs about several emails that referenced Sun's patents, Rubin said those references were to do with a possible partnership between Sun and Google that was being discussed at the time but never manifested. He also said that he was never notified of specific patent infringement by Android until mid-2010.

A lot of the time in the proceedings was spent debating the finer points of the two patents in question. The discussion hinges on nuances in the language of the patent claims and it will eventually be up to the jury to decide which of Sun's patents, if any, Google has infringed on. Groklaw has presented a copy of the first draft of the special verdict form that will have to be filled out by the jury once all arguments in this phase of the lawsuit have been heard.

(fab)