Oracle cries foul over expert in Java case against Google

If it prevails, a trial may not happen until 2020

The accusations have been flying for five years now in Oracle's bitter legal battle with Google, and on Thursday the companies reportedly appeared in a San Francisco District Court to hear Oracle argue its latest charge: that the expert brought in by the federal judge presiding over the case is biased in Google's favor and should be disqualified.

James Kearl, a professor at Brigham Young University, was asked to serve as an expert on the case by Judge William Alsup for an unbiased view of the facts.

The facts in question, of course, are those surrounding Google's use of Oracle's Java code in the development of its wildly successful Android mobile platform. Oracle charges copyright infringement, and the courts have flip-flopped over the years in their decisions. The Supreme Court rejected the case in June.

In the meantime, however, Kearl has also served in the ongoing Apple v. Samsung patent lawsuit, and his position there is the source of Oracle's current discontent.

"When he was hired by Samsung in Apple v. Samsung, he sided with Google in a highly publicized case where the patents at issue involved technology that is part of Android," Oracle charged in a motion filed Oct. 15. "One of the issues in that case was whether, as Apple argued, Samsung used Dr. Kearl’s analysis to give the jury a low damages number in an attempt to make all patents appear to have little value."

In short, "it is no longer appropriate for Dr. Kearl to serve as a neutral expert in this case," Oracle said, adding that no replacement expert is needed now that the question of patents -- originally considered a factor but since eliminated -- is no longer part of the equation.

"The parties’ experts in the normal adversary process will sufficiently present the issues to the Court and the jury," Oracle said.

Google has rebuffed Oracle's claims.

"Oracle’s motion mischaracterizes the Court’s stated reasons for appointing Dr. Kearl, wrongly downplays the tremendous complexity of the copyright damages analysis on retrial, and falls back on innuendo to accuse Dr. Kearl of being a partisan for Google and Android," it said in a response filed Oct. 29. "There is no reason whatsoever to think Dr. Kearl will favor Google."

In a separate declaration of his own filed Oct. 28, Kearl supported Google's assertions. He also was in court on Thursday.

Neither Google nor Kearl responded to a request for comment. Oracle declined to comment.

In the hearing on Thursday, Judge Alsup reportedly warned that disqualifying Kearl could delay the case considerably. "If I agreed with you and knocked out Dr. Kearl, we would delay this case 18 months while we found another expert," Alsup is said to have told Oracle's attorney. The trial could be delayed as far as 2020, he reportedly suggested.

In August, Oracle accused Google of "destroying" the market for Java.

Currently, a jury trial is scheduled for May 2016. Damages sought by Oracle are expected to amount to as much as $1 billion.

"The impartiality of judges and experts appointed by judges is a bedrock principle," said Ray Van Dyke, a patent and technology attorney, via e-mail. "Bias of any sort is anathema to the judicial system, and this potential for bias allows challenges, such as here."

If a particular expert becomes known as a "hired gun" for an industry, then "a charge of bias is tenable," Van Dyke added. "If, however, the expert has no track history and is propounding reasonable interpretations, then bias cannot be assumed."

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Katherine Noyes

IDG News Service
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