An Oracle patent that was previously invalidated by the US Patent and Trademark Office—only to be reinstated upon further review—may yet be asserted against Google when the blockbuster Android trial heads to its patent phase.

We wrote on Monday that Oracle was successful in overturning the USPTO’s prior decision to invalidate the patent. Given that Oracle initially asserted seven Java patents against Google, only to see five of them invalidated, Oracle would certainly like to get this patent in front of the jury, giving it three instead of two to assert.

The problem is that Oracle had already agreed to drop the patent from the case, on the condition that the rejection wasn’t overturned in time for the trial to begin. The trial did begin before the Patent Office reversed its decision, but the trial is in its first phase, covering only copyright issues. The patent questions haven’t been addressed yet, and Oracle is suing Google over both copyright and patent infringement.

Google has insisted that Oracle cannot assert the patent, and claims in statements to the press that the judge dismissed the patent with prejudice. That wasn’t quite true, based on our reading of the court documents (we are not lawyers, however). Oracle made its dismissal of the patent conditional on the timing of the trial, and the judge made a reference to the conditional dismissal in order to let the trial get started, but he didn’t explicitly order the patent to be dismissed with prejudice.

In a brief filed late yesterday, Oracle argued that since the patent phase of the trial has not yet begun, its conditional withdrawal of the patent has not yet taken effect. Not allowing the patent into the trial “would deprive Oracle of a significant intellectual property right,” Oracle wrote.

Google immediately filed its own brief opposing Oracle’s request, arguing that Oracle “agreed irrevocably to dismiss no later than the day that trial commenced.” The decision on this patent may come down to Judge William Alsup’s response to Oracle’s conditional withdrawal, which read in part, “in reliance on Oracle’s withdrawal with prejudice” of the patent in question, “this order now sets April 16 as the first day of trial.”

Google points to that statement as proof that Oracle lost its right to assert the patent the day the trial began. Oracle points to the same statement and the wording of its own conditional withdrawal and argues that the patent can still be asserted because the patent phase of the trial hasn’t yet begun.