How Oracle told the world it wants billions from Google

June 17, 2011

By Alison Frankel

The opinions expressed are her own.

Sometimes big news comes in unusual wrappings. On Thursday, Dan Levine of Reuters broke the news that Oracle is seeking billions of dollars in damages from Google in its Java patent and copyright suit infringement suit. Props to Levine for the scoop, especially because Oracle’s confirmation of the magnitude of its damages claim—long speculated to be billions by tech bloggers—came in the form of a response to a Google motion to seal part of the record of its attack on an Oracle expert.  Not exactly the place you’d expect to find market-moving disclosures.

But some scrutinizing of the docket has Reuters convinced that Oracle fully intended the news of its multibillion-dollar damages claim to become public. And indeed, soon after the Reuters scoop, San Francisco federal district court judge William Alsup, who’s presiding over the case, issued an order unsealing the material that Google wanted to keep confidential—including a solid number on Oracle’s damages claim. That will become public Friday.

Meanwhile, here’s how Oracle got word of its damages claim out. Last month, Oracle served Google with a report compiled by its damages expert, Dr. Iain Cockburn. (The report wasn’t filed with the court.) On June 6, Google sent a letter to Judge Alsup, requesting permission to file a motion challenging Cockburn’s qualifications to testify as an expert. Under Judge Alsup’s procedures, the letter included a précis summarizing Google’s argument. Google wanted to keep that précis—which included Cockburn’s total damages estimate—private, so also asked Judge Alsup on June 6 to seal the letter.

Google claimed Oracle would want the précis sealed as well. The document, Google’s lawyers told Judge Alsup, contained information Oracle had designated as confidential. Judge Alsup said he wanted to hear from Oracle on that point. He ultimately gave Oracle until June 16 to confirm that Google’s précis contained information Oracle considered private.

In the meantime, the judge granted Google permission to file its motion to exclude Cockburn’s testimony. In a June 14 brief, Google’s lawyers—King & Spalding; Greenberg Traurig; and recently-added Keker & Van Nest—argued that the Oracle expert had committed “fundamental and disqualifying” legal errors in order to reach an “unreliable and results-oriented” opinion on the damages Google owes Oracle for allegedly infringing seven patents and two copyrights on the Java programming code.

Unfortunately, Google’s June 14 brief is heavily redacted, so we get lots of foreplay and not a lot of climax. In one instance, the Google lawyers write: “Ignoring the settled legal framework for evaluating patent damages and many years of evidence establishing the modest market value of Java technology, Cockburn opines that Google would owe Oracle an amount in the breathtakingly large amount of [redacted] if Google is held to infringe any claim of any of the seven patents at issue in this case. That range is orders of magnitude beyond any reasonable valuation of the intellectual property at issue.” For those of us following the case from the outside, that’s just frustrating. What range? What exactly is the “breathtakingly large amount”?

Oracle finally responded to Apple’s June 6 motion to seal its précis on Thursday, the deadline imposed by Judge Alsup. But instead of confirming that the précis contained confidential information, Oracle said it didn’t mind if the Google filing was made public. And just in case it wasn’t made public, Oracle spelled out exactly what Google had improperly redacted in its précis, including “isolated words such as ‘multibillion,’…and any and all references to the fact that Oracle’s damages claims in this case are in the billions of dollars.”

Got that? Oracle’s damages claims are in the billions of dollars.

Of course, Oracle didn’t really need to file the response to Google’s motion to seal the précis, since Judge Alsup had already said he would unseal the document unless Oracle asked him not to. Oracle wanted the document unsealed anyway. But its filing removed any doubt. It also put the “billions of dollars” into the public domain via an Oracle filing, not a Google précis.

Nicely placed, Oracle.

Reuters contacted Oracle lawyers and spokespeople from the company and its law firms, Morrison & Foerster and Boies, Schiller & Flexner. They declined to comment. Messages left with lawyers at all three of Google’s firms in the case weren’t returned.

Photo: Oracle CEO Larry Ellison talks during his keynote address at Oracle Open World in San Francisco, California September 22, 2010. REUTERS/Robert Galbraith

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