The last-ditch attempt at a settlement in the Google/Oracle lawsuit ended in failure. The trial is expected to start on April 16th.
As most commentators expected, there was no sudden change of heart at a final pre-trial conference aimed at negotiating an agreement on the use of the Java technology in Android.
Judge Paul S. Grewal who had ordered Oracle president Safra Catz and Google's head of Android, Andy Rubin to attend in person reported:
Despite their diligent efforts and those of their able counsel, the parties have reached an irreconcilable impasse in their settlement discussions.
Wishing them "Good Luck" he concluded
No further conferences shall be convened. The parties should instead direct their entire attention to the preparation of their trial presentations.
Meanwhile, Judge William Alsup has given the parties an extra task, requiring:
In the submissions due on Tuesday please include your analysis of the CONTU report, which the Judge has now read with interest. Please also quote from any relevant passages in the committee reports following up on the CONTU report, that is, to what extent did Congress intend to adopt the report?
In addition, please include a critique of Professor Pamela Samuelson's article in 85 Texas Law Review 1921 (2007). If there are one or two other treatises or articles you recommend, please cite them and give a sentence as to their importance.
Groklaw comments: This request has got to be good news for Google. The CONTU report was the impetus for the Copyright Act of 1976 that provided formal copyright protection for software. Interestingly, some of the recommendations of the CONTU report were not implemented by the Copyright Office.
With regard to the second item on reading list Groklaw tells us that Pamela Samuelson is the foremost authority on (and critic of) copyright protection of software in the country and that this particular article, Why Copyright Law Excludes Systems and Processes from the Scope of Its Protection is "right on point".
Groklaw also reports one area of agreement between the two parties. Both Google and Oracle have filed motions to exclude portions of the testimony of the court-appointed damages expert Dr. Kearl - although, of course, its a different portion in each case.
Google's objection focuses on Dr. Kearl's stated opinion that the starting place for the valuation should have been the entire IP bundle under negotiation in the 2006 Sun/Google negotiations, not just the copyrights and patent at issue in this case.
Oracle, on the other hand, is concerned with the Google expenses related to Android that were deducted from the damages base, arguing that Google has the burden of establishing those expenses and has failed to do so.
Groklaw however considers that while these objections may make some difference they are not critical to Dr. Kearl's overall calculations and would only amount to perhaps plus or minus $10 million, which in this context is not a lot.
Will the main focus of the forthcoming trial just be about the amount of damages? And if so how much will it impinge on Android's future. It is now a matter for the court - but it seems that the judge will make all concerned work hard in coming to decisions.
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