Google Denied Bid to Seal Internal E-Mail, Weakens Defense in Oracle Suit

Google Denied Bid to Seal Internal E-Mail, Weakens Defense in Oracle Suit

A judge denied Google’s request to seal a potentially damaging e-mail, as its legal battle with Oracle escalates over possible Java patent infringement.

U.S. District Court Judge William Alsup, who is overseeing Oracle’s suit against the Mountain View, Calif.-based based company, ruled Google cannot have the internal e-mail sealed as requested, as it is an incomplete draft not “protected by the attorney-client privilege.” The e-mail reveals the company had previously considered licensing Java for Android, a sign that it may have known Android used trademarked Java code.

Google called the e-mail an incomplete draft message subject to client-attorney privilege and says Oracle wrongly revealed it in violation of a court protection order. Google filed two motions that sought to redact the information from court documents, making it inadmissible as evidence in the case, but to no avail.

The e-mail is the latest development in Oracle’s increasingly high-stakes suit, which alleges Google knowingly violated several Java patents in its Android OS.

According to a transcript of a July 21 hearing, the e-mail, drafted by Google employee Tim Lindholm last August and just two weeks before Oracle filed suit, refers to Google co-founders Larry Page and Sergey Brin’s wish “to investigate what technical alternatives exist to Java for Android.”

“We have been over a bunch of these and think they all suck,” read the e-mail, according to the transcript. “We conclude that we need to negotiate a license for Java.”

However, no such negotiation happened; Google maintains it did nothing wrong.

The e-mail may greatly weaken Google’s defense, as acknowledged by Alsup in the July 21 hearing. “You are going to be on the losing end of this document,” said Alsup to Google’s counsel, according to the transcript.

Google attorney Robert Van Nest, however, counters the company proposed to license Java only after Oracle’s litigation became a threat.

“If Oracle comes in and says, okay, you are going to have to spend all this money on a lawsuit, and we are going to seek billions of dollars, the question from the CEO is, is there any other way we can do this and avoid it, altogether?” said Van Nest to Alsup, according to the transcript.

The stakes are high for the case, which has become a bellwether for exactly how vulnerable the Android OS may be in patent litigation. Oracle is seeking $2.6 billion in damages, although Alsup recently reprimanded the company was for the high amount. He instead suggested a benchmark of $100 million as a starting point for estimating damages in the case, still a considerable sum. Alsup also took issue with the highly-paid expert Oracle hired to estimate damages.

Perhaps more damaging to Google than losing money should Oracle win, however, would be if the suit incidates Android is weak in a court of law. Android, built on an open-source model that incorporate outside software contributions, has attracted a number of intellectual-property lawsuits, many of which angle for usage-royalties or licensing fees as Android continues its dominance in the smartphone market.

Google previously indicated a willingness to settle with Oracle, and may consider the possibility more strongly in light of the internal e-mail’s admission into the case.

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