Forget the
third time; the seventh time is not the charm either when it comes to Google.
Google has tried seven times to get a damning email eliminated from the
evidence in its legal battle with Oracle, thus far to no avail.
The email in
question is one written by Google engineer Tim Lindholm that basically says
Google needed to negotiate a license for Java. Oracle maintains that Google
infringed on its Java patents and copyrights in creating Android.
On his FOSS Patents blog, Florian Mueller
reports:
Google
made five
unsuccessful attempts to convince the U.S. District Court for the
Northern District of California to assign privilege to the Lindholm email. In
addition, Google brought a motion in
limine asking the judge to bar Oracle from presenting the email to the
jury because it is misleading (a different argument than asserting privilege).
That attempt number six also failed (see item 2 in this
blog post on the court's decisions on the various motions in limine).
Today, attempt
number seven failed as well. Bloomberg
reports that the Court of Appeals for the Federal Circuit (CAFC) denied
Google's petition for a writ of mandamus (a kind of interference with an
ongoing proceeding) concerning the Lindholm email. ...
U.S. District
Judge William Alsup turned Google down on its earlier attempts and the CAFC
denied this latest bid at getting the email quashed. Google argued that the
email should be subject to attorney-client privilege or work-product rules.
However, “I have meanwhile read the CAFC decision, and it makes it clear that
the Lindholm email is anything but privileged attorney-client correspondence,
let alone an attorney work product,” Mueller said in his post.
Google had
argued that Lindholm was not in a position to analyze whether Android infringed
on Oracle's Java patents. But the judge cited Lindholm's background, saying he
was "quite knowledgeable about Java and Android technology as separate platforms and any
potential crossover between the two platforms." Lindholm joined Google
from Sun Microsystems, which created Java, and he was part of the team that
developed the Java language and platform.
The Lindholm
email reads: "What we've
actually been asked to do (by Larry [Page] and Sergey [Brin]) is to investigate
what technical alternatives exist to Java for Android and Chrome. We've been
over a bunch of these, and think they all suck. We conclude that we need to
negotiate a license for Java under the terms we need."
Earlier in the
case, Alsup cited the potential
importance of the Lindholm email, saying that all a competent lawyer might need
is Lindholm's comments "and the Magna Carta" to argue that Google had
willfully infringed on Oracle's patents. If found to have willfully infringed
on Oracle's patents, Google could be forced to pay triple damages by the court.
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