Google Can't Get Android Memo Sealed in Oracle Case

Google and Oracle's legal battle over Android rages on, with Google losing a bid to have a damning email draft struck from public record.

Google (NASDAQ:GOOG) failed to have sealed an email that suggested the company should ink a licensing agreement to safely use Oracle's (NASDAQ:ORCL) Java software in its Android operating system.

Judge William Alsup, U.S. District Court for the Northern District of California, wrote Aug. 1 that Google cannot have the internal email sealed because it is not "protected by the attorney-client privilege," according to the Wall Street Journal.

Oracle sued Google for patent and copyright infringement in August 2010, claiming Google used Java software technology from Sun Microsystems without permission to build Android.

Google denied the claims for most of the last year, but as more details of the situation came to light, the search giant has suggested it would be amenable to a settlement.

Roughly two weeks before its litigation with Oracle began, Google co-founders Larry Page and Sergey Brin asked Google software engineer Tim Lindholm "to investigate what technical alternatives exist to Java for Android."

"We have been over a bunch of these and think they all suck," Lindholm wrote in July 2010. "We conclude that we need to negotiate a license for Java."

While Google argued that the email should be protected under attorney-client privilege, Alsup countered in his opinion Monday that because the message had not actually been sent, it could not be construed as a communication of any sort.

Google declined to comment for this report.

Intellectual property expert Florian Muller told eWEEK he saw Google's request to have the email sealed and redacted as a "desperate attempt to suppress evidence and didn't realistically expect the judge to grant that request."

Now that damning document could put more wood behind Oracle's allegation that Google executives willfully infringed on the Java patents, which Oracle obtained when it purchased Sun Microsystems in 2010.

Alsup recently said Oracle should expect to start its damage requests at around $100 million, though willful infringement in the U.S. calls for a trebling of damages.