Judge may order Page and Ellison into mediation

Battle of the Two Larrys could go face to face

Larry Ellison and Larry Page could be forced into mediation to negotiate a settlement in Oracle's multi-billion-dollar claim that Google's Android tramples Java patents it owns.

The US judge hearing Oracle's suit against Google has said he's deciding whether to order both sides into mediation, presided over by a magistrate judge.

As part of this, US district Judge William Alsup is also considering whether the "top executive officers" for both sides should be in attendance, for at least two full days of talks.

Alsup has asked the lawyers for Oracle and Google to comment on his proposal and identify the top executives on both sides they'd put forward. They have until noon on September 7 to respond.

It remains to be seen who Alsup has in mind and who the companies will put forward for talks, but the topmost executive officers for Google and Oracle are, of course, Page and Ellison.

Alsup points out that Oracle's case against Google is now near to trial and that private mediation has so far failed to succeed.

Oracle's competitive CEO is not above stepping into a courtroom when it suits him: he took the stand in a court in Oakland, California, last autumn to testify that SAP's defunct TomorrowNow subsidiary had taken Oracle trade secrets to the tune of $1bn.

That court initially sided with Ellison and hit SAP with a $1.3bn damages over TomorrowNow, but a new judge has since ruled that award is "grossly excessive" and suggested Oracle accept $272m instead - or accept a new trial for damages.

Oracle launched its suit against Android and Google in August 2010 claiming $2.6bn in damages on 132 claims of patent violations in the way Android uses Java on mobile.

In the year since Oracle filed, its case has seen setbacks: in March Alsup told Oracle to slim down its number of claims to a "triable number". He noted the amount of prior art involved provided so much ammunition for the defense it would take up too much court time.

In June, the US Patent and Trademark Office (USPTO) rejected 17 of 21 claims associated with one of the patents.

Oracle's case is predicated on the thesis Google deliberately violated patents and copyrights it owns on Java. Nine months into the case, Oracle subpoenaed the Apache Software Foundation (ASF) in an attempt to prove this theory. Oracle's lawyers demanded the surrender of a raft of communications with Google, plus other documents on the source code of ASF's Project Harmony, Android, and the licensing of Java Standard Edition (Java SE).

Harmony is ASF's implementation of Java SE under an Apache license while the official Java SE from Oracle is under a GPL license. The Dalvik virtual machine on Google's Android implements a subset of Harmony: the class libraries. ®