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The U.S. Court of Appeals for the Federal Circuit earlier today denied Google's petition for a writ of mandamus to overturn the district court's ruling that the Lindholm email was not privileged. Maybe, just maybe, Google will now throw in the towel on trying to protect the Lindholm email.
In an opinion which cast little doubt as to the law or the facts in this instance, a three-judge panel of the Federal Circuit found the claim of privilege to be totally undermined by the content of the email, the instructions that gave rise to the email (as stated in the body of the email), and the fact that the addressees of the email were not legal counsel to Google.
vollständige Meldung - 02/06/12 Oracle v. Google - Still Waiting on the Revised Cockburn Report
Although Dr. Cockburn's third attempt at a damages report was due to be filed last Friday, February 3rd, it has yet to show up on the electronic docket. That is most likely due to its length and the possibility that Oracle will seek to redact portions of the filing. In the meantime, Judge Alsup has issued a clarifying order with respect to the trial briefs on the issue of copyright. (710 [PDF; Text]) The judge basically instructs the parties to not interpret the law for him but to set out the relevant passages so he may draw his own conclusions. In addition, he wants the parties to make clear where they agree on the underlying law.
We also have the transcript of the July 21 Daubert hearing on the first Cockburn damages report. (Text of Document 231) You will recall that it was at the conclusion of this hearing that Judge Alsup ordered Oracle and Dr. Cockburn to go back and try again with something closer to a more reasonable assessment of damages. (Damages Report - Try Again, Oracle) We now get a better insight into the arguments set forth by Google in attacking the original report.
vollständige Meldung - 02/03/12 Oracle v. Google - The Copyright Issues
Today is the due date for Dr. Cockburn's third attempt at a damages report on behalf of Oracle, and just to make sure Oracle knows what needs to be submitted, Judge Alsup has issue a reminder order. (709 [PDF; Text]) The judge wants to see not only the report but also all of the related reports and studies that support it.
To recap what this third report is to address if Oracle wants to argue these points on damages:
vollständige Meldung - 02/02/12 Oracle v. Google - Moving the Case Along
Just because the Oracle v. Google case has not been set for trial (and won't be until at least the time at which Oracle provides its third attempt at a damages report) does not mean the court can't move the case along, and that is what Judge Alsup has done with his latest order. In an attempt to narrow the issues to be argued at trial, Judge Alsup's latest order (708 [PDF; Text]) focuses on the copyright issues and directs the parties to provide opening briefs in which they identify each remaining claim of copyright liability and the affirmative defenses to each such claim. In addition, the parties are to identify those issues that should be resolved by the court and those underlying facts that first need to be decided by the jury.
This order adds to a somewhat lengthy litany of filings due from each party under various orders in effect at this time. The timeline for those responses is:
vollständige Meldung - 02/01/12 The Latest on the Barnes and Noble Patent Misuse Defense - Some AntiFUD ~pj
I'm seeing a couple of articles about an initial determination by the ITC against Barnes & Noble on its patent misuse defense, and there's quite a lot of spin on the ball, thanks to the usual suspects. They are reading a lot into a title of a sealed document. I see many misstatements. So I'll explain a little about the process, so you can understand it. For one thing, the title of the sealed ITC initial determination is called an *initial* determination for a reason. It means it isn't final. The final one comes later. Initial determinations can be reviewed by the full ITC if the defendant petitions for review and even one Commissioner says yes.
Litigation isn't like football. It is rarely suddenly over.
Most importantly, the materials and depositions Barnes & Noble is seeking in discovery from Nokia and MOSAID have not yet arrived, although the ITC did
grant Barnes & Noble's motion to ask Finland and Canada to provide them, and that's still ongoing, so there is likely more to go, even at the ITC. So with those materials not yet in hand, Microsoft's statement today that this means the defense is meritless is... well... to put it kindly premature. I mean, if a determination is made without the complete record being available, what does it mean?
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