Google Off to Good Start in Reexamination of Oracle Patents

Scott Daniels | May 24, 2011

Oracle’s patent infringement action against Google and its Android®, involving seven Java platform patents and a series of related copyrights, is scheduled for a three-week trial starting October 31, 2011.  But as Florian Mueller reported last week, Judge William Alsup is quite concerned about the feasibility of a jury trial, given the large number of patent claims that Oracle is currently asserting.  In a written comment on the parties’ joint case management memo, the Judge cautioned that the “larger number of patents and patent claims asserted … the more practical it will then seem to simply stay this case and see which claims survive PT re-examination,” alluding to the reexamination proceedings currently pending at the PTO for each of Oracle’s seven patents.

Clearly, Judge Alsup is encouraging Oracle to trim the number of patent claims for trial, without actually ordering it to do so.  Faced with substantial uncertainty on how its patents will fare in reexamination between now and the October trial, Oracle, just as clearly, does not want to make any premature commitment to specific patent claims.  For its part, Google has not expressed its preference between a stay and a trial, stating that it “defers to the Court’s discretion to grant a stay pending reexamination.”

Meanwhile, at the PTO, Google is doing well.  Reexamination has been ordered for all seven Oracle patents.  And in one – U.S. Patent No. 7,426,720 – the Examiner has issued a non-final rejection of all the claims in reexamination, adopting all eight rejections proposed by Google.  Of course, first Action rejections are the norm and Oracle may now traverse the rejections.  Still Google has reason to be encouraged.  Indeed, the same Examiner is assigned to the other six reexaminations, and Actions in those other proceedings are likely to issue within the next few weeks.

What will these Actions mean for the trial?  If the Examiner continues to issue rejections of the Oracle claims, especially if some of those rejections become final, Judge Alsup might see less and less reason to proceed with the trial and give serious consideration to a complete stay pending completion of the reexaminations.

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