Google battles Oracle expert over damages estimate

MOBILE OPERATING SYSTEM DEVELOPER Google is challenging a claim for damages in the Android lawsuit filed against it by Oracle, the current owner of Java.

Oracle has brought in a damages expert, Ian Cockburn, who has estimated how much Google will owe if it is found to have infringed Oracle's Java patents. Oracle is looking for more than Google has made on Android, according to a gadfly blogger who is a self-styled patents guru.

Cockburn is a professor at Boston University who regularly consults in lawsuits and Federal Trade Commission complaints to give his expert opinion in cases involving copyrights or patents regarding appropriate damages.

Cockburn's proposed testimony represents a major threat to Google, so much so that the company wants the court to dismiss him and prevent his report from being seen by the jury. It claims that his views would prejudice the jury against it, slating them as "unreliable, misleading, and inappropriate".

That's a very strong reaction from Google, which has hired three law firms to fight Oracle in what has become a bitter battle over the half open source, half proprietary Java language and its alleged use in developing Android software that runs under its Dalvik virtual machine.

It's not surprising that Google is dismayed with Cockburn's estimate of damages, as he postulates that Google should pay 50 per cent of its earnings from Android to Oracle, while Oracle is asking for treble damages since it accuses Google of "willfully" infringing its patents. This could result in Google being forced to pay all of its Android earnings to Oracle, along with an additional payment equaling half of that.

Of course, the court would first have to establish exactly what earnings Google makes from Android. It's an open source operating system that Google doesn't charge vendors for licensing, so Google doesn't make any money directly from smartphone vendors that use it.

However, Google does make money from advertising on Android handsets. Google is asking the court to separate its mobile advertising profits from the non-existant 'revenue' it makes from Android, which would lead to Google paying considerably less, if anything, if it is found to have infringed Oracle's Java patents. After all, 150 per cent of nothing is zero.

But that's only damages. If Google loses this case it will have to pay a licence fee going forward if it wants to use Java. Currently Oracle is seeking an injunction against Google to bar it from using Java, but it would most likely deign to agree to a hefty licensing deal, considering the massive success of Android.

Although Google is being sued for patent infringement by Oracle, it's still a long way from potentially losing at trial and finding itself in the situation of having to pay damages. It claims that it hasn't infringed Oracle's Java patents and that those patents are, in the first place, invalid.

However, even before the case goes to trial Google is disputing the reliability of Cockburn, which could result in part or all of his testimony being dismissed. A worst case scenario might not even result in damages being awarded, but it's safer for Google to ask that the opposing expert witness be barred before he even has a chance to tell the jury how much he's calculated Google should have to pay if it loses at trial. µ