Oracle-Google Jury Told to Keep Deliberating May 7 Over Java

Jurors deciding whether Google Inc. (GOOG) stole Oracle Inc.’s technology are deadlocked on one of three questions about whether the search engine provider infringed copyrights to build Android software now used on more than 300 million phones.

U.S. District Judge William Alsup in San Francisco, presiding over an intellectual property trial in its third week, sent the jurors home today and ordered them to return May 7 for more deliberations. He said earlier he would accept a partial verdict today and changed his plan after talking privately with Oracle’s and Google’s lawyers.

“It’s worth sending you home since you told me there’s hope for reaching a unanimous decision on all questions,” Alsup told jurors.

The jury’s foreman told Alsup that the panel’s majority believed the judge should be notified today that it’s at an impasse on one question. Other jurors favored more talks May 7 “to see if anyone has come up with a new perspective,” the foreman said.

The foreman said the jury can’t agree on one of three questions about whether Google infringed Oracle’s copyrights on the Java programming language when it used the technology to develop the Android operating system.

“Fair Use’

In two of those questions, jurors are also being asked to decide whether Google’s use of Java, if there was infringement, qualified as “fair use,” meaning that it added something new or functional to Java that is in the public interest. Google won’t be liable for infringement damages if the jury finds it made fair use of Java copyrights.

The bulk of the $1 billion in damages Oracle is seeking is linked to copyright infringement, according to court filings.

Alsup said that if jurors decide Google infringed copyrights without agreeing on whether that was fair use, he would accept a partial verdict and have the panel take the matter up later in the eight-week trial, or a new trial could be held on that issue.

A fourth question, which Alsup will use as a guideline for issues that he has to decide, is whether Google proved that it reasonably relied on Oracle and Sun Microsystems Inc., Java’s creator, when it decided not to pay for a Java license.

Oracle, the largest maker of database software, is also seeking a court order blocking Google from distributing Android unless it pays for a license. Google claims that the parts of Java it used aren’t covered by copyrights and that its use of Java, a free language, was fair and legal.

Damages, Injunction

Without a verdict on whether infringement is fair use, Oracle can’t seek damages or an injunction, said Edward Naughton, an intellectual property attorney at Brown Rudnick LLP in Boston who isn’t involved in the case.

“They can’t get relief, money or injunction, until there’s a ruling on the defense of fair use,” Naughton said in a phone interview.

The next phases of the trial, expected to last until the first week of June, concerns whether Google infringed two Java patents and whether Redwood City, California-based Oracle is entitled to any damages.

The case is Oracle v. Google, 10-03561, U.S. District Court, Northern District of California (San Francisco).

To contact the reporter on this story: Karen Gullo in San Francisco at kgullo@bloomberg.net

To contact the editor responsible for this story: Michael Hytha at mhytha@bloomberg.net