Google takes issue with jury selection in Oracle vs Android case
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."
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."
Comments
... 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.
So the notion of APIs is patented?
"We are Evil"
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?
"We are Evil"
that's not an answer.
And you and I have vastly different definitions of evil.
deleted
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.
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.
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.
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.
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
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.
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.
Spoiler: It does.
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.