Oracle could withdraw three patents “with prejudice” to bring forward trial date
Oracle has offered to drop three further Java patents-in-suit against Google in exchange for a mid-April trial date, according to a 9 March court filing.
Earlier this month Judge William Alsup warned that a proposed spring trial would have to be postponed to allow for ongoing re-examinations of Oracle’s patent claims and requested that both parties comment by the Friday deadline.
Oracle’s offering appears to have accepted Judge Alsup’s request to “irrevocably withdraw with prejudice patents ‘720, ‘702, and ‘205”, but it will press ahead with the ‘520 patent, which Florian Mueller of FOSS Patents notes is the only patent affirmed in the re-examination, and the ‘104 ‘James Gosling’ patent.
Of the latter, Google points out that the patent will expire this December “so the potential damages period is relatively narrow and the propriety of an injunction questionable”. Mueller suggests that the judge may try to have Oracle drop the ‘104 patent as well in order to streamline the case.
Part of the reason why Oracle is willing to sacrifice additional patent claims (the offer puts the case down to two from an initial seven) to avoid trial postponement relates to a continuing loss of revenue the longer the case the stays out of court.
“While this case awaits trial, more than 700,000 Android-based devices are activated every day, all fundamentally built around the copyrighted Java APIs and the enhanced performance enabled by Oracle’s patents,” the company said in a motion filed on 17 January. “Each day’s worth of activations likely generates approximately $10 million in annual mobile advertising revenue for Google.
“Google’s misappropriation of Oracle’s intellectual property unjustly enriches Google at Oracle’s expense, but also inflicts irreparable harm on Oracle by diverting the Java developer ecosystem to the free, incompatible Android platform and fragmenting the Java platform. The longer trial is delayed, the greater that irreparable harm.”
Though Oracle will enter a possible trial in April with only two patents on top of its copyright case, patents ‘720, ‘702 and ‘205 were dropped “with prejudice”, meaning that they will be submitted for reconsideration to the US Patent and Trademark Office (USPTO) and could be brought up at a later date.
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