DOW JONES NEWSWIRES
Attorneys for Google Inc. (GOOG) this week asked a California
court to disqualify potentially sizable damages estimates put
forward by an Oracle Corp. (ORCL) expert, in connection with
intellectual-property litigation between the firms involving
Google's Android software.
In a letter to Judge William Alsup filed Monday, Google
attorneys took issue with unspecified damages estimated by Iain
Cockburn, who was hired by Oracle.
The Google attorneys wrote that Cockburn suggested erroneously
that Oracle be compensated for the advertising revenue Google won
through online searches done on phones based on Android, which
Oracle said infringes on its Java software. The expert's opinion is
"unreliable" and "inappropriate," according to the attorneys.
Cockburn "seems to be arguing that Google's advertising revenue
from...mobile searches on Android devices should be included" in
determining compensation theoretically owed to Oracle, the lawyers
wrote, "though he never articulates or supports this
justification."
They added that Google at one point negotiated with Sun
Microsystems, the original developer of Java, over licensing terms
for the software--but ultimately rejected them. Oracle acquired Sun
last year.
The Google attorneys requested a so-called "Daubert" motion to
exclude the presentation of Cockburn's estimates at trial.
Oracle originally filed suit against Google in August of last
year, alleging that Android, which has become widely adopted among
mobile-phone makers, infringed on a number of patents and
copyrights associated with Java.
The case has been watched closely as a relatively unique example
of patent litigation filed directly against Google, rather than
against a device maker using Android in its products--and as a
high-profile spat between two of Silicon Valley's largest
technology firms.
Google's lawyers noted that the company does not sell copies of
Android, which is an open-source software project provided to
device makers for free.
Though Cockburn suggested that Oracle is entitled to a share of
the revenue gained through advertising on Android phones, Google's
legal team countered that "the value of the Android software and of
Google's ads are entirely separate: the software allows for phones
to function, whether or not the user is viewing ads."
A Google representative declined to comment; an Oracle
spokeswoman declined to comment.
Cockburn, a professor at Boston University's School of
Management, did not respond to a request for comment.
The Google attorneys wrote that Oracle's expert improperly
inflated his calculation of a royalty that theoretically would be
owed to Oracle if Google had licensed Java for use in Android. He
also applied "an unprecedented 50% royalty rate to that base
through use of improper shortcuts," the attorneys wrote.
The lawyers added that Cockburn improperly suggested that Google
owes Oracle unspecified damages related to the "fragmentation" of
Java, resulting from Google's development of an incompatible strain
of the software for use in Android.
Android has attracted a number of intellectual-property lawsuits
since Google unveiled it for distribution in 2007, though they
generally have been directed at companies that make use of Android
in the products that they sell.
Microsoft Corp. (MSFT), for example, has sued Barnes & Noble
Inc. (BKS) over its use of Android in the Nook e-reader, and has
sued Motorola Mobility Holdings Inc. (MMI) over its use of Android
in that company's mobile phones.
IDC analyst Al Hilwa suggested that Oracle opted to sue Google
directly because it wants to shore up Java's place in the world of
mobile software. "They want to make Android a licensed Java
product," he said. "That's what I think their goal is."
Oracle's Java ME software is widely used in so-called feature
phones, or lower-end models.
In post on a company website in March, Oracle noted: "The
majority of the world continues to use feature phones and the best
way to bring applications to these devices is with Java ME."
"In India alone, feature phone users outnumber smartphone users
by a factor of 18 to 1," it said.
Android, meanwhile, has gained a large share of the market for
software used in smartphones.
According to data published by comScore Inc. (SCOR), Google's
software held a 36.4% share among U.S. smartphone subscribers as of
April, compared with 31.2% in January.
Apple Inc. (AAPL), which makes the popular iPhone, saw its share
rise to 26% in April from 24.7% in January, while Research In
Motion Ltd. (RIMM), maker of the BlackBerry, saw its share slip to
25.7% from 30.4%.
-By John Letzing, MarketWatch; 415-439-6400;
AskNewswires@dowjones.com