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Expert witness in Oracle-Google lawsuit called into question

In the Oracle vs. Google court case over the use of Java APIs, Oracle claimed an expert witness appointed by the judge to assess potential legal damages isn't impartial.

On Nov. 19, Oracle and Google appeared in U.S. District Court in San Francisco for the latest chapter in their five-year legal feud over the use of Java APIs in the Android mobile operating system. At the hearing, Oracle asked the federal judge overseeing the case to disqualify an expert witness who is scheduled to provide him with an assessment of potential legal damages stemming from Google's use of the APIs without payment to Oracle.

U.S. District Judge William Alsup selected James Kearl, a professor of economics at Brigham Young University in Provo, Utah, to be an independent damages expert in the Oracle-Google lawsuit in September 2011. Kearl was appointed to act as a neutral third party. As a court-appointed expert witness, his role in the trial is determined by the Federal Rule of Evidence 706. Oracle submitted the motion to disqualify the Rule 706 expert to Judge Alsup on Oct. 15, calling into question Kearl's neutrality and trying to remove him as an expert witness -- a request that has the potential to further delay the conclusion of the lawsuit.

The Oracle vs. Google case stretches back to 2010, when Oracle sued Google for using Oracle's Java APIs in Android. After an extensive jury trial in 2012, Judge Alsup ruled that Google couldn't have violated Oracle's copyright, because APIs aren't copyrightable. Oracle then went to a federal appeals court, which, in May 2014, reversed the district court's ruling, saying that the structure, sequence and organization of the APIs are copyrightable. Google appealed that decision to the U.S. Supreme Court, which earlier this year declined to hear the case.

Oracle's issue with Kearl's role as an expert witness stems from his involvement not in the legal battle with Google, but in another case. Last year, he was an expert witness for smartphone maker Samsung in the Apple versus Samsung patent suit. Google agreed to pay some of Samsung's legal costs in the event of a loss in the multibillion dollar lawsuit over alleged infringement of patents held by Apple. Oracle claimed in its disqualification motion that Kearl was indirectly hired by Google -- since it was financing Samsung -- and that he thus has a previous connection to Google and can't be truly unbiased.

In a response to Oracle's motion, submitted to Judge Alsup on Oct. 29, Google said that Kearl only testified on an infringement counterclaim filed by Samsung against Apple. While Google acknowledged its financial involvement in the original lawsuit filed by Apple, it said it didn't have a similar role in the counterclaim. Thus, according to Google, Kearl doesn't have any prior connection to the company.

While the Supreme Court rejecting Google's appeal of the API copyrights ruling may seem very final, the Oracle-Google lawsuit is far from over. Oracle and Google have a court date set for May 9, 2016, to take up the issue of whether Google's use of the Java APIs falls under the terms of fair use. If it is declared to be a fair use of the APIs, Google will be able to continue using them in Android. So, that phase of the case is likely to be both Google's last chance to keep using the APIs and Oracle's last chance to keep them as its intellectual property.

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