It "appears possible" that Google knew that its Android mobile operating system would violate Java patents held by Oracle, but decided to go ahead with the effort anyway, the judge overseeing the companies' intellectual property lawsuit said in a letter filed Tuesday.
Judge William Alsup made the statement in connection with the so-called Daubert motion Google has filed in hopes of excluding the findings of Oracle's damages expert. Both sides have submitted briefs in connection with a hearing on the motion, which is scheduled for July 21.
"In reading the Daubert briefing, it appears possible that early on Google recognized that it would infringe patents protecting at least part of Java, entered into negotiations with Sun [Microsystems] to obtain a license for use in Android, then abandoned the negotiations as too expensive, and pushed home with Android without any license at all," Alsup wrote in the letter filed in US District Court for the Northern District of California.
"How accurate is this scenario?" he added. "Does Google acknowledge that Android infringes at least some of the claims if valid? If so, how should this affect the damages analysis? How should this affect the questions of willfulness and equitable relief? Counsel should be prepared to address these issues at the hearing."
Oracle, which gained control of Java through its purchase of Sun Microsystems, sued Google last year, saying Android violates seven of its Java patents. Google has denied any wrongdoing.
Oracle's damages expert concluded that Google owes Oracle up to US$6.1 billion, according to Google. Oracle has cited a figure of $2.6 billion.
A Google spokeswoman said the company does not comment on pending litigation. An Oracle spokeswoman declined comment.
One question hanging over the dispute is whether Alsup will decide to stay the case while the US Patent and Trademark Office re-examines a number of Oracle's patents. Google had requested the re-examinations.
In a filing on Monday, Alsup asked both sides to prepare a joint summary that explains where the re-examinations stand, as well as provides their "respective views on the extent to which this action should be stayed pending completion of the re-examination."
Overall, Alsup seems to be increasing the pressure on both Oracle and Google to settle, according to Florian Mueller, a blogger who closely tracks open-source software legal matters.
"Yesterday's order concerning the possibility of a staywas bad news for Oracle," Mueller said via e-mail. "Today's notice looks like a clear signal to Google that they should recognize their obligation to pay. But the problem is that Oracle's demands are apparently way above anything that Google could pay without changing its Android business model from 'free-of-charge' to 'fee-based.' I don't know whether Oracle will reduce its demands substantially in order to enable a near-term settlement."
Chris Kanaracus covers enterprise software and general technology breaking news for The IDG News Service. Chris's e-mail address is [email protected]