Google Loses Bid to Exclude E-Mail From Oracle Trial

Google Inc., fighting a patent lawsuit filed by Oracle Corp., lost its appeals court bid to keep secret an engineer’s e-mail that says the Web search company should negotiate a license for Java technology.

The U.S. Court of Appeals for the Federal Circuit in Washington today denied Google’s request to overturn a judge’s order that the information could be presented to a jury when the case goes to trial. Tim Lindholm wrote the e-mail in August 2010, days before Oracle alleged in a lawsuit that Google’s Android operating system had been designed using patented and copyrighted features of Oracle’s Java programming language.

Lindholm’s e-mail was related to an effort by the company and its lawyers to formulate a response to Oracle’s allegations and is protected by attorney-client privilege, Mountain View, California-based Google argued. The Federal Circuit disagreed, saying that Lindholm’s e-mail states “he was responding to a request from Google’s management, not Google’s attorneys.”

“The e-mail’s discussion is directed at a negotiation strategy as opposed” to a legal strategy, Circuit Judge Alan Lourie wrote for the three-judge panel. “The e-mail does not evidence any sort of infringement or invalidity analysis.”

In the e-mail to Andrew Rubin, the executive in charge of Google’s mobile division, Lindholm said he was asked by company co-founders Larry Page and Sergey Brin to “investigate what technical alternatives exist to Java for Android and Chrome.”

“We’ve been over a bunch of these, and think they all suck,” Lindholm wrote. “We conclude that we need to negotiate a license for Java under the terms we need.”

Google said the e-mail was mistakenly disclosed to Oracle.

Oracle, based in Redwood City, California, has said it’s seeking at least $1 billion in damages. U.S. District Judge William Alsup in San Francisco has rejected earlier versions of how Oracle calculated the damages estimate.

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