Oracle has asked a judge to bar Google from using some testimony given by former Sun Microsystems CEO Jonathan Schwartz in the companies' intellectual-property suit over the Android mobile OS, saying it has "no legal and factual predicate."
Schwartz has provided some of the strongest testimony for Google in the case so far. Appearing on the stand last week, Schwartz was asked by a Google attorney whether, as CEO of Sun, he had made a decision not to sue Google over its use of Java in Android.
"Yes," Schwartz replied. "We didn't feel we had any grounds."
Oracle acquired Sun early in 2010, gaining control of the Java programming language. It sued Google later that year, claiming Android violated patents and copyrights it holds on Java. Google has denied wrongdoing, saying Android is a "clean room" Java implementation that doesn't violate Oracle's rights. The trial's first phase, which covers copyright liability, began in April and went to the jury this week.
Oracle asked the court to bar Google from referencing Schwartz's testimony during the trial's second and third phases, which will cover Oracle's patent claims and damages, respectively.
"Google's question called for a yes or no answer, but Mr. Schwartz in response volunteered an opinion as to what 'we' 'felt' about the grounds for pursuing litigation against Google over Android," its motion states.
"The question appeared to ask only whether Mr. Schwartz had made a decision not to pursue litigation," Oracle added. "But Mr. Schwartz's answer -- and Google's subsequent use of that answer -- implicates Sun's (now Oracle's) privileged discussions by suggesting that there was an unidentified group of people ("we"), who had made some final decision as to whether to pursue litigation and the strength of those claims."
"What legal grounds Sun's management felt they had or what decisions they were considering is clearly privileged," Oracle said. "Moreover, Mr. Schwartz had no right nor any basis to make such a statement which subjects Oracle to privilege waivers that Mr. Schwartz has no authority to invoke."
Also, "the suggestion that Oracle had decided not [to] sue is clearly against the weight of the evidence presented in this case," Oracle said.
Evidence presented in the trial showed that Sun and Google had discussions following the announcement of Android in 2007, that those talks went on after Oracle bought Sun, and that Google officials considered buying "all the rights to Java" from Sun in order to ward off lawsuits, according to the filing.
If Oracle had decided to rebut Schwartz's testimony at the time he made it, that would have placed the company "in the quandary of having to decide whether to waive privilege on the spot," Oracle added. "If Google is allowed to rely on this testimony, and the jury is allowed to believe that it matters, the trial will divert into an irrelevant sideshow over Mr. Schwartz's subjective state of mind, instead of Sun's affirmative acts.
Lawyers for the two sides discussed the matter in court Friday morning. Google's attorney, Robert Van Nest, indicated that Sun wanted to bring Schwartz back to the stand to testify in the patents phase of the trial. In his deposition testimony, Schwartz made a similar comment that Sun did not see a reason to sue Google on patent grounds, Van Nest said.
Google declined to comment today.
Meanwhile, Oracle has said it plans to bring back to the stand Tim Lindholm, a Google engineer who wrote an email that was seen as a key piece of evidence in the copyright infringement part of the trial. Oracle says Lindholm can give testimony relevant to the patents part of the case.
Van Nest told the court that if Oracle can bring Lindholm back and "parade him around" before the court, then Google should be able to bring Schwartz back.
The judge didn't seem keen to have either witness back. Both seem "peripheral" to the dispute over patents, he said Monday, and he asked the lawyers to try "make a deal" that neither witness be brought in to testify again.
The matter is likely to be discussed again at a future hearing.
A verdict in the copyright phase of the case could come as soon as Friday, but a question from a juror to the judge on Thursday raised the possibility that the jury could be deadlocked on the copyright claims.
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