A three-judge US Court of Appeals panel has denied Google's request to toss out another judge's decision to allow an incriminating email from being used as evidence in Oracle's Java-patent lawsuit against Mountain View.
The email in question was sent by Google engineer and ex–Sun man Tim Lindholm shortly before Oracle initiated legal action for what Ellison & Co. deem to be violations of its Java patents in Google's Android and Chrome operating systems.
A reasonable person might take the wording of Lindholm's email to indicate that Google was aware of the legal need to find an alternative to Java:
What we've actually been asked to do (by Larry [Page] and Sergey [Brin]) is to investigate what technical alternatives exist to Java for Android and Chrome. We've been over a bunch of these, and think they all suck. We conclude that we need to negotiate a license for Java under the terms we need.
Google argued that the email was protected under attorney-client privilege; Oracle – no surprise – argued that it was not. And, after all, the proverbial cat had already escaped from the proverbial bag.
Writing for the three-judge panel, Bloomberg reports, Judge Alan Lourie wrote: "The e-mail's discussion is directed at a negotiation strategy as opposed [to a legal strategy]. The e-mail does not evidence any sort of infringement or invalidity analysis."
As The Reg noted when Google first raised objections about the email's acceptability as evidence, the men in the Chocolate Factory's corner offices may have another email come back to bite them harder than Lindholm's might.
Five years before Lindolm's contested "Hi Andy" email to Android headman Andy Rubin, that latter Google exec sent another missive that has come to light:
If Sun doesn't want to work with us, we have two options: 1) Abandon our work and adopt MSFT CLR VM and C# language – or – 2) Do Java anyway and defend our decision, perhaps making enemies along the way.
Enemies have, indeed, been made, and billions of dollars may hang on the outcome of the litigation. The gloves-off court battle, which had been delayed by an unrelated criminal case, is now scheduled to begin "on or after March 19, 2012," according to court documents. ®