The judge in Oracle Corp. (ORCL)’s lawsuit against Google Inc. (GOOG) may accept a partial verdict if the jury can’t agree on all four verdict questions about whether the search engine provider stole Oracle’s technology to develop Android software or didn’t need a license.
U.S. District Judge William Alsup in San Francisco said today that he had a “strong inclination” to accept a partial verdict on copyright infringement in the case, an outcome that Google’s attorney Robert Van Nest said he opposes and Oracle’s lawyers said they support.
“I’m going to receive a partial verdict,” Alsup said. “I’m not going to let this work go to waste.”
The jury has been weighing whether Google infringed parts of Oracle’s Java programming language to develop the Android operating system for smartphones, now running on 300 million devices. The panel heard two weeks of testimony from Oracle and Google executives, including their chief executive officers.
After three days of deliberations, a juror sent a note to Alsup yesterday asking what happens if they can’t reach a unanimous decision. He told them to “start fresh” today and they continue to deliberate.
Jurors were asked to decide whether Mountain View, California-based Google infringed copyrights and, if so, whether the copying was “fair use,” meaning that it added something new or functional to Java that is in the public interest.
If they unanimously agree that Google infringed and can’t agree on whether it was fair use, accepting just the infringement verdict and having another trial on the fair use question could violate Google’s constitutional rights, Van Nest said. The lawyer cited the Seventh Amendment to the U.S. Constitution, which says that cases tried by a jury may not be reexamined by another court.
Oracle attorney Michael Jacobs said Alsup should accept a partial verdict and hold a new trial on unresolved issues and copyright damages.
The bulk of the $1 billion in damages Oracle is seeking is linked to copyright infringement, according to court filings. 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.
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’s not 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.
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