We last reported that Oracle might end up with getting only $150,000 (only) in damages from Google, but now the condition seems to be worsen a bit as Judge clearly warned Oracle that it could end up with nothing in IP trial. There is unwanted confusion that merges up in the court as Judge has to decide what the future of the trial going to be as the motions heading into phase three of the trial, which focus on damages.
Judge Alsup maintained his opinion throughout the hearing that Oracle is “going on a fishing expedition” with the damages phase if it really wants to go after infringer’s profits instead of just statutory damages. Oracle counsel David Boies tried to convey to the judge that there is no precedent for limiting the plaintiff to statutory damages and prohibiting them from going after infringer’s profits.
“There is no case, none, in which there has been proven a product that was containing copyright infringed materials that was distributed and revenue generated and recorded by the defendant where it had been held that the burden is still on the plaintiff to go forward,” asserted Boies. Boies acknowledged that “nine lines of code is a small percentage,” but he posited that the test files are much more substantial — even if they’re not included in the current version of Android.
“They want to argue that somehow this court ought to say that if something is small, you don’t get any infringer’s profits,” said Boies about Google. “It gives them a free pass on these things they deliberately copied.” Boies acknowledged this to be true and responded, “We think as a matter of principle we’re entitled to infringer’s profits.”
“Once we have done that, I believe the burden shifts to the other side,” Boies posited, adding that even if he is wrong about that, he thinks it’s still possible to prove that Google used the copyrighted intellectual property just to release Android faster. “The idea that somebody copied that in order to get to market faster when it would be just as fast to write it — it was an accident that it got in there,” Alsup told Boies. “You’re one of the best lawyers in America. How could you even make that argument?”
Alsup did order that Oracle should submit “a detailed offer of proof as to nexus” by 9PM PDT on Tuesday evening.