The software giant and Google are preparing for a trial in May following the Supreme Court’s June 2015 dismissal of an appeal against a Court of Appeal for the Federal Circuit ruling that upheld the copyright in, and reinstated Google’s infringement of, 37 Java application interfaces (APIs).
The District Court for the Northern District of California must still assess whether Google has a fair use defence to incorporating the APIs in Android, from which the internet company has earned $31 billion in sales and $22 billion in profit since the mobile operating system launched in 2008.
May’s trial will also assess the level of damages that Google must pay for the 37 instances of infringement, if they are upheld, prompting Oracle to file a damages report and testimony in February from expert witness James Malackowski, who is CEO of IP asset consultancy Ocean Tomo.
According Malackowski’s report and testimony, which contain redactions, Oracle is entitled to $475 million in actual damages and $8.83 billion in apportioned profits.
Malackowski commented in his report: “The infringed Java copyrights were critically important to the timing of Google’s launch of the Android platform.”
“Google’s strategy in launching Android as a mobile platform was to ensure a continuing revenue stream from its search services in connection with mobile advertising. Mobile search has generated significant advertising revenue and profit for Google, and the Android platform is a critical component of Google’s overall mobile search business.”
Google hit back on 23 March, filing a motion to exclude portions of Malackowski’s report and testimony. A ruling on the motion will be made in April.
The internet company claimed that Malackowski ignored the statutory standard for copyright damages in coming to his conclusions, arguing: “Once he deducts Google’s costs to reach a profit number, Malackowski conducts no apportionment of Android at all.”
“He opines that the Android OS as a whole—including the more than 99 percent of Android code that is not accused in this case—is responsible for 35.6 percent of profits on advertisements shown on Android devices and 100 percent of profits on Google-branded Android hardware, applications and digital content sold for use on Android devices.”