Oracle must drop damages methodology before Android trial, says judge

It is now unclear exactly when Oracle's lawsuit against Google over alleged Java intellectual property violations in the Android mobile OS will go to trial, according to a ruling filed this week by US District Court for the Northern District of California.

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It is now unclear exactly when Oracle's lawsuit against Google over alleged Java intellectual property violations in the Android mobile OS will go to trial, according to a ruling filed this week by US District Court for the Northern District of California.

"Before a trial date will be set, the issue of damages methodology must be finally sorted out," Judge William Alsup said in the order. "Put differently, the Court will not set a trial date until Oracle adopts a proper damages methodology, even assuming a third try is allowed (or unless Oracle waives damages beyond those already allowed to go to the jury)."

Last week, Alsup ruled that the trial would begin on or after March 19, but this order sets that aside.

"For this 'delay,' Oracle has no one to blame but itself, given that twice now it has advanced improper methodologies obviously calculated to reach stratospheric numbers," Alsup added.

Oracle's damages expert originally estimated last year that Google could owe up to $6.1 billion (£4 billion) in damages for the alleged violations. But Alsup rejected that assessment, and since then Oracle has yet to produce a damages report acceptable to the judge.

A second obstacle in the way of going to trial is a pending petition filed by Google with an appeals court over a controversial email written by Google engineer Tim Lindholm, Alsup wrote.

"What we've actually been asked to do by Larry and Sergey is to investigate what technology alternatives exist to Java for Android and Chrome," Lindholm wrote in the August 2010 email, shortly before Oracle filed suit, referring to Google co-founders Larry Page and Sergey Brin. "We've been over a hundred of these and think they all suck. We conclude that we need to negotiate a licence for Java."

Google has repeatedly tried and failed to keep the email out of the case on a number of bases, including that it was subject to attorney-client privilege. But Google's petition to the appeals court over the email is also in the way, according to Alsup's ruling Thursday. "If Oracle will waive reliance on that email, then this roadblock would vanish," he wrote.

However, the email has been characterised as a proverbial smoking gun for Oracle's case, with even Alsup stating during one hearing that Google would be "on the losing end" of the document, so it's not clear whether Oracle will actually take up Alsup's offer.

Alsup previously ordered that the trial be conducted in three phases. It will take two months, and that is adequate, Alsup wrote. "The time limits set are almost double the maximum ever used in any trial in the judge's 12-plus years on the bench."