Oracle to take third stab at damages estimate in Google case

The new damages report is due Feb. 3

Oracle agreed on Tuesday to bear the costs of a third attempt at estimating damages in its lawsuit against Google, rather than postpone the damages claims.

Oracle accepted the terms proposed Friday by the judge overseeing the case, who scolded Oracle for failing to produce a suitable damages report on two earlier occasions.

"Oracle has already had two full and fair opportunities and has overreached on both. Oracle has behaved unreasonably and should bear the burden of the consequences," wrote Judge William Alsup, of the U.S. District Court for the Northern District of California, in his proposal on Friday.

Oracle's first damages report cited an expert who suggested Google might have to pay Oracle as much as US$6 billion. The judge found that that report, and a subsequent one, overreached in several ways.

Last week, Oracle asked the court to consider dropping its patent infringement charges and related damages claims in favor of speeding up the copyright portion of the trial. It hoped to refile the patent infringement claims at a later data.

The move would have allowed Oracle to more quickly try for an injunction against the import of Android phones, patent expert Florian Mueller said in a blog post.

Judge Alsup didn't look kindly on the proposal, however. "The piecemeal approach suggested by Oracle as a trial alternative will not be adopted. The docket simply does not permit that luxury," Alsup wrote. If Oracle wanted to dismiss its patent claims it could do so only with prejudice, he wrote, meaning it wouldn't be able to refile them later.

Oracle's damages expert must now submit his revised estimate by Feb. 3. Oracle and Google will have a few weeks after that to study and revise the estimate.

Since the damages methodology "must be sorted out" before the case can go to trial, there's no point in setting a firm date for the trial, Alsup wrote. "If matters go smoothly herein and if other trial settings fall away, the instant case could still possibly be tried starting mid-April," he wrote.

However, Alsup noted that he has an unusually heavy caseload at the moment and if the Oracle case doesn't go to trial in April, it likely won't happen until the last four months of the year.

"For now I wouldn't book a flight to San Francisco in mid-April for this trial," Mueller wrote in a blog post Tuesday. In addition to Alsup's heavy case load, Google could try to slow down the process, he said.

Oracle has charged Google with patent and copyright infringement in Android. Google denies all wrongdoing.

Nancy Gohring covers mobile phones and cloud computing for The IDG News Service. Follow Nancy on Twitter at @idgnancy. Nancy's e-mail address is Nancy_Gohring@idg.com

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