Judge rules on contested evidence in Oracle-Google case

A contentious email will stay but other evidence can be excluded, a judge has ruled

Oracle and Google have both won and lost in a number of their efforts to keep evidence out of the upcoming trial in Oracle's lawsuit against Google over the Android mobile OS. At issue is whether Google has infringed on Oracle's intellectual property rights by using Java without properly licensing it.

Judge William Alsup once again ruled that a potentially damaging email from Google engineer Tim Lindholm can be admitted at trial, according to a ruling made Wednesday in US District Court for the Northern District of California.

"What we've actually been asked to do by Larry and Sergey is to investigate what technology alternatives exist to Java for Android and Chrome," Lindholm wrote in the August 2010 email, referring to Google co-founders Larry Page and Sergey Brin. "We've been over a hundred of these and think they all suck. We conclude that we need to negotiate a license for Java."

Google had repeatedly and unsuccessfully attempted to keep the email out of the trial over the past year, arguing that it was subject to attorney-client privilege and that Oracle had revealed it in violation of a protective order.

Google had also provided a declaration from Lindholm in which he stated that before writing the email, he "had not reviewed any of the patents and copyrights at issue before writing the email, nor had he reviewed any of the source code or implementation for the allegedly infringing aspects of Android, and he did not (and had no legal training necessary to) analyze whether Android infringed," Alsup wrote. "This attorney-prepared declaration is unpersuasive."

Alsup's ruling may not be the final word, however, given that Google has filed a petition with an appeals court in hopes of keeping the email out. It's not clear when that matter will be resolved.

Meanwhile, Alsup's order on Wednesday also denied a Google motion that would have stopped Oracle from presenting tests purporting to show improved performance for Android "with the accused functionality."

But he partly granted another Google motion concerning the exclusion of evidence Oracle gained from Motorola Mobility.

Oracle can show "evidence that tends to show infringement by the Motorola Droid," as well as information alleging that "Motorola engineers used Android SDK's dx tool to write Android applications," Alsup wrote. "Evidence relevant to the Motorola Droid and dx tool can be presented even if it also suggests that other Motorola devices, which were not included in the infringement contentions, performed the allegedly infringing functionalities."

However, "The jury will be told that the only Motorola device accused of infringement is the Motorola Droid and that other Motorola devices cannot be considered for infringement or damages," he added. "Oracle cannot argue that other Motorola devices infringed or that damages should be awarded for other Motorola devices."

Among other things, Alsup's ruling also conditionally granted an Oracle motion to "exclude evidence or argument that Google relied on legal advice" in deciding to create and release Android. "No reference shall be made by either side to advice of counsel to Google without a specific proffer and approval by the Court in advance," he wrote.

But Alsup shot down an Oracle motion concerning the ability of Google to present evidence that third-party equipment manufacturers had "changed infringing components of Android."

"Google will be held to its discovery responses and will not be allowed to present Google employees, officers, or directors on the subject of original equipment manufacturer (OEM) modifications of Android code, having said that it is ignorant on the subject," Alsup wrote. "Google is not barred, however, from presenting third-party percipient witnesses or third-party documents obtained via trial subpoena from OEMs on the same topic."

The judge's rulings further set the stage for the upcoming trial, which Alsup said earlier on Wednesday will begin "on or after" March 19.

Chris Kanaracus covers enterprise software and general technology breaking news for The IDG News Service. Chris's e-mail address is Chris_Kanaracus@idg.com

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