5/15/2012 12:15:00 PM,
SAN FRANCISCO (CN) - Closing arguments in the patent infringement phase of the Oracle-Google battle began Tuesday morning, but not before losing a juror to car trouble.
U.S. District Judge William Alsup dismissed Juror Number Two with both legal teams' blessing after she said she was unable to attend the day's session. Within minutes the remaining 11 jurors received half of Alsup's instructions and Oracle began its closing arguments.
"Google infringes Oracle's '104 patent, the '520 patent and Google's infringement is willful," Oracle attorney Michael Jacobs began. "Everything else is a distraction."
Jacobs wound his way through many of Google's "distractions," most of which have been lifted from the copyright phase of the trial and imported into this one.
"Fair use is irrelevant. 'Clean room' is irrelevant. Open source is irrelevant. One of the distractions is 'Android is huge -- 15 million lines of code -- one or two little things, how can it be infringement,'" Jacobs stated, recalling Google's first phase arguments against calling nine lines of rangeCheck code out of 16,000 lines infringement.
"There is a reason these patents are infringed, and it's because Google started by using basic Java elements. Google specifically tells its developers to go to the Oracle website and download the Java Development Kit. There was a conscious adoption of Java architecture and that led Google to infringe," Jacobs said, adding, "Google has no defenses."
Oracle claims that Google's Dalvik Virtual Machine infringes its '104 patent, using symbolic references and infringing resolve.c in its Dalvik interpreter. Google disputes this, saying that the virtual machine uses numeric references instead.
"What was Google's motive for infringing the patents?" Jacobs asked the jury. "They faced the same problem Java programmers faced 10 years before. They relied on '104's symbolic reference to make Android run faster."
Jacobs reminded the jury that while Oracle's burden of proof for infringement simply requires a slight tipping of the scales, proving willfulness is a greater burden. He pointed the jury to the first requirement-recklessness.
"Was Google reckless in the way it approached Android and Oracle's patents? Did Google hide their head in the sand, pretend there was no risk, or risk making enemies along the way? Were they going the wrong way down a one way street? You don't have to know what car is going to hit you to be reckless," the Oracle attorney said.
He continued: "When Google set out to develop Android, they set out to use key components of Java. Google tried to cover up its infringement of Android, urging developers not to show the product to Sun employees or lawyers."
Jacobs reminded jurors of the long stream of emails over a five year period between Google employees and Android developers, who urged Google to take a license from Oracle's predecessor Sun Microsystems. Other employees suggested "spending $100 million would be cool" to buy the full rights to Java from Sun and creating an open-source foundation with it, according to Jacobs.
The final proof of willfulness happened the day Oracle informed Google of patent infringement in July 2010, Jacobs told the jury. Android developer Tim Lindholm, who used to work for Sun and helped developed Java, told Google executives once again that a license was necessary. Oracle filed its copyright and patent infringement suit against Google a month later, in Aug. 2010.
"There was no patent review. Android adopted Java. There is no defense of its use, no effort to design around the patents. And they tried to hide their infringement from Oracle," Jacobs said.
"They drove down a one way street the wrong way-they really should have been more cautious," he concluded.
Google lead attorney Robert Van Nest began his closing argument by stating the case for Android simply.
"Oracle failed to meet the strict test for patent infringement. The '104 patent doesn't even mention the word Java, not once. Why is Oracle still talking about Java," Van Nest asked.
"The '104 patent requires that symbolic references be used in the instructions, and Android never uses symbolic reference. Android uses numeric references. The '104 patent requires that if you're going to resolve symbolic reference you have to do it dynamically, not statically. [Android's] dextop is a static application," Van Nest stated.
He also explained the key difference of the '520 patent, which "requires simulated execution of the byte code. Android doesn't use simulated execution. It uses pattern matching."
"We shouldn't be surprised that Android is different-there's not a shred of evidence that anyone on the Android team had access to these patents. Google made fundamentally different design choices for Android," Van Nest said.
The Google attorney first poked holes in theories posited by Oracle's star expert witness, Dr. Peter Mitchell. "Oracle rested their case on Dr Mitchell, who changed his opinion about the entire case after he saw another report," Van Nest said, before slipping into a long and highly technical dissertation about the internal workings of an operating system.
Van Nest concluded his close by attacking Oracle's willfulness prong.
"They didn't prove any part of their infringement case. Therefore, there can't be willfulness. Google negotiated with Sun for a year. Android's programming was posted on the Google website. And what was Sun's response? Not 'Oh, you terrible infringer.' Instead it was congratulations. Why would you go out and search for patents when the patent-holder says 'Welcome to the Java community,'" Van Nest stated, referring to Sun's then-CEO Jonathan Schwartz's blog post congratulating Google on Android's release.
The jury begins its deliberations Tuesday afternoon with much clearer instructions and verdict form than in the copyright phase. Depending on the verdict and the decision of several outstanding issues -- including Google's motion for a phase one mistrial and a determination about what is copyrightable which Judge Alsup said is at least a week away -- a third phase for damages could take the trial into June.