Judge: No date for Android trial until Oracle fixes damages theory

The judge also asks Oracle to 'waive reliance' on the controversial email by Google engineer Tim Lindholm

It is now unclear exactly when Oracle's lawsuit against Google over alleged Java intellectual property violations in the Android mobile OS will go to trial, according to a ruling filed Thursday in U.S. District Court for the Northern District of California.

"Before a trial date will be set, the issue of damages methodology must be finally sorted out," Judge William Alsup said in the order. "Put differently, the Court will not set a trial date until Oracle adopts a proper damages methodology, even assuming a third try is allowed (or unless Oracle waives damages beyond those already allowed to go to the jury)."

Last week, Alsup ruled that the trial would begin on or after Mar. 19, but Thursday's order set that aside.

"For this 'delay,' Oracle has no one to blame but itself, given that twice now it has advanced improper methodologies obviously calculated to reach stratospheric numbers," Alsup added.

Oracle's damages expert originally estimated last year that Google could owe up to US$6.1 billion in damages for the alleged violations. But Alsup rejected that assessment, and since then Oracle has yet to produce a damages report acceptable to the judge.

A second obstacle in the way of going to trial is a pending petition filed by Google with an appeals court over a controversial email written by Google engineer Tim Lindholm, Alsup wrote.

"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, shortly before Oracle filed suit, 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 has repeatedly tried and failed to keep the email out of the case on a number of bases, including that it was subject to attorney-client privilege.

In other filings, Oracle has asked for the trial to begin as soon as possible.

But Google's petition to the appeals court over the email is also in the way, according to Alsup's ruling Thursday. "If Oracle will waive reliance on that email, then this roadblock would vanish," he wrote.

However, the email has been characterized as a proverbial smoking gun for Oracle's case, with even Alsup stating during one hearing that Google would be "on the losing end" of the document, so it's not clear whether Oracle will actually take up Alsup's offer.

Alsup previously ordered that the trial be conducted in three phases. It will take two months, and that is adequate, Alsup wrote. "The time limits set are almost double the maximum ever used in any trial in the judge's 12-plus years on the bench."

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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