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Google takes issue with jury selection in Oracle vs Android case

post #1 of 41
Thread Starter 
While Apple continues to focus its lawsuits against Android licensees, Oracle's lawsuit targeting Google's Android infringement of Java continues on a fast track to Halloween that Google appears interested in slowing down with jury selection objections.

According to a report by FOSS Patents blogger Florian Mueller, Google has objected to the court's decision to draw jurors from a pool pre-cleared for a separate, longer criminal trial.

Jury selection not diverse enough!

Google says the group is "is less likely to provide a fair cross section of the community than the usual venire available in patent-infringement cases such as this one. As a practical matter, most potential jurors who ordinarily would be available to serve on a three-week civil trial will have significant personal or professional commitments that may make them ineligible to serve in a multi-month criminal trial. Accordingly, the pre-cleared group will be smaller, less diverse, and less representative than the broader group that would otherwise be available for selection."

Mueller notes that Google's intention is likely to be a delay tactic intended to ensure the case won't be ready for trial by the end of October as is currently scheduled. But he also notes that the jury pool originally selected for its ability to participate in an unrelated month long case is more likely to be older and more conservative, and less likely to be tech savvy, employed and of the younger "Google generation."

That would make it harder for Google to argue the fine technical details that distinguish Android's Dvalik virtual machine from Oracle's original Java VM, and make it harder to convince jurors that Android's documented infringement is excusable though legal loopholes that could allow the sealing of evidence, as Google has worked to do, albeit unsuccessfully so far.

No technical experts!

At the same time, Google has also argued against the the court's decision to allow a technical expert to serve as an independent, court appointed advisor, asking that the advisor instead be an "industry expert" more familiar with marketing.

Google stated, "if the Court decides to appoint a technical or industry expert regarding the basis of demand for Android, Google believes that an industry expert would be more helpful to the Court and the jury than a technical expert.

"An industry expert would have first-hand knowledge of the market for handsets, operating systems, and applications, how those products are marketed to consumers, and the reason why consumers make their practical purchasing decisions. [] A technical expert, by contrast, might be limited to offering objective data regarding how any patented features in the Android software improved the performance of that software, but may not have a basis for evaluating the extent to which any of those performance improvements actually mattered to consumers, relative to the other features of the software."

Mueller notes that in this situation, "Google obviously wants to downplay the role Oracle's Java IPRs play, claiming that anything those patents (and copyrights) cover is just a small part of Android as a whole. Oracle wants the opposite.

"Programmers are, on average, more inclined to attach substantial value to certain functionalities, and in this case we're talking about rights that allegedly cover essential aspects of Android's app platform. A programmer's perspective is likely to be that Android would be fundamentally less valuable without the technologies to which Oracle claims exclusive rights. For a programmer, Android without access to all those Dalvik-based apps is a rather unattractive platform."

Potential Apple involvement in the Android case

While Apple has focused its resources toward stopping specific Android-based products that it claims infringe upon its technical and design implementation patents, it may lend assistance to Oracle's case in presenting the fact that when Google acquired Android, it included employees with an intimate knowledge of not just Oracle's Java (then owned by Sun), but also Apple's own, patented OS features. The group within Android subsequently used that technology, despite knowing that it was patented.

In its case against Android licensee HTC, Apple stated that Android's original and current lead developer Andy Rubin "began his career at Apple in the early 1990's and worked as a low level engineer specifically reporting to the inventors of the '263 patent at the exact time their invention was being conceived and developed."

Apple's statement added, "it is thus no wonder that the infringing Android platform used the claimed subsystem approach of the '263 patent that allows for flexibility of design and enables the platform to be 'highly customizable and expandable' as HTC touts."

Apple's patent 6,343,263, for "Real-time signal processing system for serially transmitted data," refers to "the use of real-time application programming interfaces (APIs) interposed between application software or driver software and the real-time processing subsystem." Mueller described the technology as foundational to Android, making it "extremely hard" to work around.

While Apple has so far indicated a preference for focusing its legal complaints against infringing commercial products rather than Android itself, Oracle could cite Apple's statements in the HTC case as further evidence of Google's willingness to use technology in Android that it knew to be patent encumbered. Oracle itself has presented evidence that Rubin suggested to "do Java anyway and defend our decision, perhaps making enemies along the way."
post #2 of 41
So the notion of APIs is patented?
post #3 of 41
Quote:
Originally Posted by AppleInsider View Post

... Google has objected to the court's decision to draw jurors from a pool pre-cleared for a separate, longer criminal trial. ... Google says the group is "is less likely to provide a fair cross section of the community ... most potential jurors who ordinarily would be available to serve on a three-week civil trial will have significant personal or professional commitments that may make them ineligible to serve in a multi-month criminal trial ...

Translation: These people won't be our community. Anyone who is techie enough to be on our side will not be able to serve because of professional commitments. These are just regular ordinary poor people without the correct techie bias we need.
post #4 of 41
Quote:
Originally Posted by AbsoluteDesignz View Post

So the notion of APIs is patented?

"We are Evil"
post #5 of 41
Quote:
Originally Posted by Prof. Peabody View Post

Translation: These people won't be our community. Anyone who is techie enough to be on our side will not be able to serve because of professional commitments. These are just regular ordinary poor people without the correct techie bias we need.

wouldn't you need a jury who can actually understand the evidence?
post #6 of 41
Quote:
Originally Posted by ConradJoe View Post

"We are Evil"

that's not an answer.

And you and I have vastly different definitions of evil.
post #7 of 41
The graphic in the original article is hilarious. Thanks for the laughs again, Dan.
post #8 of 41

deleted


Edited by MacRulez - 5/4/12 at 1:23pm
post #9 of 41
Quote:
Originally Posted by AbsoluteDesignz View Post

wouldn't you need a jury who can actually understand the evidence?

No.
In a case like this, a jury who understands the evidence would also have a higher potential of having an preexisting bias. A good lawyer knows how to explain the situation enough for the jury to understand and dictate the evidence.

And these will be some excellent lawyers.
post #10 of 41
Quote:
Originally Posted by AbsoluteDesignz View Post

wouldn't you need a jury who can actually understand the evidence?

No, explaining the evidence is the attorney's job.

You always want a jury that's a cross-section of society, the wider the selection the more likely to get an honest result. You don't want a jury of all regular dummies, but you don't want one of all tech-heads either.
post #11 of 41
why would apple want to side with Oracle. Apple wants android to fail while it is in Oracle's best interest that android becomes as successful as possible that way they can get more money out of it. Apple would stand to lose by siding with Oracle on this.
post #12 of 41
Quote:
Originally Posted by AbsoluteDesignz View Post

wouldn't you need a jury who can actually understand the evidence?

Us court system likes to use the term reasonable observer and othe rvague language so having people that know what is going on may disqualify the, from being a reasonable observer. So the closer the jury is to "average American" the more apt the court system considers them to be.
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post #13 of 41
Quote:
Originally Posted by AppleInsider View Post

Google says ".... most potential jurors who ordinarily would be available to serve on a three-week civil trial will have significant personal or professional commitments that may make them ineligible to serve in a multi-month criminal trial. Accordingly, the pre-cleared group will be smaller, less diverse, and less representative than the broader group that would otherwise be available for selection."


Google stated, "An industry expert would have first-hand knowledge of the market for handsets, operating systems, and applications, how those products are marketed to consumers, and the reason why consumers make their practical purchasing decisions. […] A technical expert, by contrast, might be limited to offering objective data regarding how any patented features in the Android software improved the performance of that software, but may not have a basis for evaluating the extent to which any of those performance improvements actually mattered to consumers, relative to the other features of the software."

Hmmmm...... they want a jury that is more diverse, but an expert who is less diverse.
post #14 of 41
deleted
post #15 of 41
Quote:
Originally Posted by MacRulez View Post

This is a good example: while Steve Jobs says the future is in the cloud, for Larry it's just a laugh-fest:
http://www.youtube.com/watch?v=KmXJSeMaoTY

Just as Larry makes fun of what Steve calls the future, Larry's not really siding with anyone. He's just having a laugh, and he's rich enough to hire enough lawyers to amuse himself this way.

When did Steve Jobs say that the "future was in the cloud"? I mean, sure, he realizes that cloud services can do wonders, hence iCloud and iTunes, etc, but I think that he realizes that a significant amount of the compute power and some storage has to stay with the user. Most "cloud is the future" geeks picture carrying around dumb screens with no storage or brains other than that required to capture input, display output, and transfer data to/from the cloud. Steve is DEFINITELY not down with that. And listening to Larry's reinterpretation of the "Cloud" as just a nebulous renaming of the "Internet", it seems to me that Steve would agree.

So I don't see this as Larry laughing at Steve's expense at all. Quite the contrary.

But we digress...

Thompson
post #16 of 41
Quote:
Originally Posted by Apple v. Samsung View Post

why would apple want to side with Oracle. Apple wants android to fail while it is in Oracle's best interest that android becomes as successful as possible that way they can get more money out of it. Apple would stand to lose by siding with Oracle on this.

If Google are found to be a bunch of lying thieving conniving bastards then it sets precedence for future litigation.

"As previously shown the top brass at Google are lyres and thieves" your honor.
post #17 of 41
deleted
post #18 of 41
Quote:
Originally Posted by Prof. Peabody View Post

Translation: These people won't be our community. Anyone who is techie enough to be on our side will not be able to serve because of professional commitments. These are just regular ordinary poor people without the correct techie bias we need.

Supposedly, one of the jury selection questions would be "when you rooted your phone, which version of Android did you install?" Google's attorneys don't like it when a prospective juror stares blanky at that question.

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post #19 of 41
Curious how Google expects to get away with that bit about an industry expert over a technical expert. The marketing ramifications of how the patented technologies were presented is not the issue, it's whether or not the Android stack infringes on the patented Java platform.

Spoiler: It does.

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post #20 of 41
Non-lawyer opinion coming up: Personally, I'm not surprised they're objecting. Google intends to object to everything that happens in this trial. Every evening, they'll probably object to the coming of night. I suspect they see a good likelihood of losing this case, and every objection that raise during the trial is a potential item that can bring up later in appeal.
post #21 of 41
Quote:
Originally Posted by Ronbo View Post

Non-lawyer opinion coming up: Personally, I'm not surprised they're objecting. Google intends to object to everything that happens in this trial. Every evening, they'll probably object to the coming of night. I suspect they see a good likelihood of losing this case, and every objection that raise during the trial is a potential item that can bring up later in appeal.

And they tried to insinuate it will only take 3 weeks.
post #22 of 41
I think they're trying to get the jurors from the O.J. Simpson trial.
post #23 of 41
Quote:
Originally Posted by MacRulez View Post

Larry and Steve are friends from way back. None of this matters to Larry except for the chance to make some extra money off something he bought with the aim of controlling the biggest threat he faced to his ancient DB: MySQL. Oracle hasn't really made anything new in many years; they've just been coasting off the lock-in created by the DB they made a very long time ago. That Java came along for the ride with Sun was just fluff for him initially, though recently it's turned into an unexpected potential cash cow if this settlement with Google goes through.

To be fair, Oracle is not stagnate and comes as part of some really big CRM and financial application platforms with very good support. MySql is a roll your own data base with no official support other than a user forum. It should also be noted that Oracle owns MySql.

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post #24 of 41
Quote:
Originally Posted by irnchriz View Post

"As previously shown the top brass at Google are lyres...

The do tend to "harp" on about the whole don't be evil thing.
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post #25 of 41
Quote:
Originally Posted by sheff View Post

Us court system likes to use the term reasonable observer and othe rvague language so having people that know what is going on may disqualify the, from being a reasonable observer. So the closer the jury is to "average American" the more apt the court system considers them to be.

thanks. I understand now. oh well we'll see what happens.
post #26 of 41
deleted
post #27 of 41
Quote:
Originally Posted by AbsoluteDesignz View Post

wouldn't you need a jury who can actually understand the evidence?

And risk an unbiased decision? No way, let's make "using an iPhone and the latest Mac (x2) a prereq. Users need to understand the technology huh?

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Social Capitalist, dreamer and wise enough to know I'm never going to grow up anyway... so not trying anymore.

 

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post #28 of 41
Quote:
Originally Posted by MacRulez View Post

Yes, I had noted that Oracle bought MySQL. Under both current and previous ownership, there has always been the option for paid support.

MySQL scales well enough that it had become a credible threat to a sizable segment of Oracle's market. MySQL drives most of the web apps currently in use. In fact, I'd be surprised if this forum isn't run on MySQL. Gaining control of MySQL was the primary objective in Oracle's acquisition of Sun.

Are you familiar with Libre Office? Oracle owns Open Office too, and the rationale for forking it away from Oracle applies equally to MySQL and VirtualBox, no matter how uncomfortable this notion may make people.

Yes, that's the first thing I thought. The way Apple and Oracle frame it, this is a serious threat to open source and in a quite vicious way also to free work. So Andy Rubin worked at Apple and never can work on the same kind of job ever because he might make decisions based on his professional experience? Interesting.

And for those who forget it, Safari is KDE's browser. Open Source. Mac OS X is BSD. Open Source. Don't even go this way.

(preventive nuclear strike launched)

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post #29 of 41
Quote:
Originally Posted by Stourque View Post

I think they're trying to get the jurors from the O.J. Simpson trial.

Nah... Just the judge!
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post #30 of 41
Quote:
Originally Posted by hill60 View Post

The do tend to "harp" on about the whole don't be evil thing.

I think that's their "angel".
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post #31 of 41
Quote:
Originally Posted by lightknight View Post

Yes, that's the first thing I thought. The way Apple and Oracle frame it, this is a serious threat to open source and in a quite vicious way also to free work. So Andy Rubin worked at Apple and never can work on the same kind of job ever because he might make decisions based on his professional experience? Interesting.

And for those who forget it, Safari is KDE's browser. Open Source. Mac OS X is BSD. Open Source. Don't even go this way.

(preventive nuclear strike launched)

Good morning... who pissed in your Cheerios?
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post #32 of 41
Quote:
Originally Posted by lightknight View Post

And for those who forget it, Safari is KDE's browser. Open Source. Mac OS X is BSD. Open Source. Don't even go this way.

Wrong. Safari is based on KDE, but has been extensively revised - and has a great deal of proprietary stuff, as well.

Mac OS X uses a kernel which is based on the BSD kernel, but is not BSD by any stretch of the imagination.

Your arguments might be interesting if they were factual rather than imagined.
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post #33 of 41
Quote:
Originally Posted by AbsoluteDesignz View Post

that's not an answer.

And you and I have vastly different definitions of evil.

Please note the quotation marks around his reply.

... at night.

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post #34 of 41
Quote:
Originally Posted by benanderson89 View Post

Please note the quotation marks around his reply.

I noticed them...

that's still not an answer...
post #35 of 41
Quote:
Originally Posted by AbsoluteDesignz View Post

I noticed them...

that's still not an answer...

He was making a joke from a Google quote soony-jim. Try not to take it so seriously.

... at night.

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post #36 of 41
Quote:
Originally Posted by jragosta View Post

Wrong. Safari is based on KDE, but has been extensively revised - and has a great deal of proprietary stuff, as well.

Mac OS X uses a kernel which is based on the BSD kernel, but is not BSD by any stretch of the imagination.

Your arguments might be interesting if they were factual rather than imagined.

Actually from what I've read, there is very little proprietary changes in Safari from webkit (which is open source and shared freely by Apple) while Chrome which uses webkit adds quite a bit of proprietary tidbits that is doesn't share with the community.

Either way, the original poster is wrong if he is trying to pretend that Apple simply takes from the open source community without giving back. It does so quite a bit.
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post #37 of 41
Quote:
Originally Posted by freckledbruh View Post

Actually from what I've read, there is very little proprietary changes in Safari from webkit (which is open source and shared freely by Apple) while Chrome which uses webkit adds quite a bit of proprietary tidbits that is doesn't share with the community.

Either way, the original poster is wrong if he is trying to pretend that Apple simply takes from the open source community without giving back. It does so quite a bit.

WebKit is Apple's open source movement that builds from KHTML. Apple added tonnes of proprietary stuff on top of KHTML and then just went "right! open source that sucker!". Google's only proprietary addition to chrome is the V8 JS Engine. Everything about the Layout engine is just straight up webkit.

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post #38 of 41
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post #39 of 41
Quote:
Originally Posted by Ronbo View Post

Non-lawyer opinion coming up: Personally, I'm not surprised they're objecting. Google intends to object to everything that happens in this trial. Every evening, they'll probably object to the coming of night. I suspect they see a good likelihood of losing this case, and every objection that raise during the trial is a potential item that can bring up later in appeal.

Oracle also objects to everything, and has also outright refused to furnish information from the old Sun Microsystems website.
post #40 of 41
Quote:
Originally Posted by freckledbruh View Post

Actually from what I've read, there is very little proprietary changes in Safari from webkit (which is open source and shared freely by Apple) while Chrome which uses webkit adds quite a bit of proprietary tidbits that is doesn't share with the community.

Either way, the original poster is wrong if he is trying to pretend that Apple simply takes from the open source community without giving back. It does so quite a bit.

From what I understand, the difference between Chrome ("closed") And Chromium is the chrome logo and a few other very small bits. Where did you read otherwise?
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