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.