|By Maureen O'Gara||
|February 8, 2012 06:00 AM EST||
The US Court of Appeals for the Federal Circuit in Washington Monday punctured Google's hopes of hiding the telltale Lindholm e-mail from the jury when Oracle finally drags Google and Android before the bar to answer charges of infringing its Java copyrights and patents.
The appeals court sided with the district court that has already told Google six times that the highly compromising e-mail couldn't be suppressed.
Neither court bought Google's story that it was an artifact protected by attorney-client privilege that was turned over in discovery to Oracle by mistake.
The appeal court found that Google engineer Tim Lindholm "was responding to a request from Google's management, not Google's attorneys."
It said the message concerned a negotiation strategy, not a legal strategy and "does not evidence any sort of infringement or invalidity analysis."
As the e-mail plainly says, Lindholm was asked by Google bosses Larry Page and Sergey Brin to "investigate what technical alternatives exist to Java for Android and Chrome."
In response he e-mailed Android boss Andy Rubin and said, "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."
The e-mail dates to August of 2010 shortly before Oracle sued Google, and District Court Judge William Alsup has already indicated in open court that it's dynamite.
Patent war follower Florian Mueller says, "Oracle's challenge is to prove an actual infringement of valid intellectual property rights. If Oracle manages to inject the Lindholm e-mail into the early stage of the trial, the jury will basically know that Google itself knows there's some infringement somewhere. Oracle might get a whole lot of mileage out of this piece of evidence." Certainly Judge Alsup thought it would.
The pair could be in court in April.
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