The internet, and a number of reputable sources, are blowing up about a story regarding the amount of attorney’s fees Oracle is paying Google for it’s Java patent infringement case.
The cited Order to pay stems from Oracle’s debacles to employ an expert and create a report that would accurately calculate or show Oracle’s damages. Judge Alsup entered the Order in January 2012 (four months before the jury verdicts). The Order does contain conditions that include repayment of Google’s fees and expenses. In fact, here’s the specific provision from the Order:
All fees and expenses reasonably incurred by Dr. Kearl in responding to the revisions by Dr. Cockburn shall ultimately be borne by Oracle, as follows:
Dr. Kearl shall track his time in such a way as to make this segregation possible. Dr. Kearl shall continue to divide his billings as before and Google shall continue to pay its share to him, but Google may demand and recover prompt reimbursement from Oracle for the portion identified by Dr. Kearl as attributable to Dr. Cockburn’s third report.
All attorney’s fees, expert fees, and other expenses reasonably incurred by Google as a result of allowing a third damages study by Oracle, including all expense and time discussed above, shall be reimbursed by Oracle. Google shall track such items separately and invoice them to Oracle within 14 calendar days of the close of a calendar month and Oracle shall pay them within another 14 calendar days. These reimbursement amounts shall not be recoverable costs that Oracle may recover back in the event it prevails in this action. Id. at 4-5.
See, not once in those two paragraphs does it say this it “because Oracle lost” or “a condition of Oracle’s loss.” In fact, the Order says quite the opposite: “These reimbursement amounts shall not be recoverable costs that Oracle may recover back in the event it prevails in this action.” Id. at 5. The Order goes on to address the reasonableness of Oracle’s third attempt at an expert calculation of damages – apparently Oracle didn’t like the numbers in the first two.
Now, it’s quite likely that Google’s expert witness fees and other costs may be in the range of $300,000, though nothing in the filings or this Order indicates that. What I suspect is that some Google employee advised that the reimbursement or expert witness costs were in the realm of $300k. I would expect that Google’s high-priced lawyers cost more than $300,000 for a 5 day trial. In fact, I’d be shocked if they got away with so little in fees. Now, don’t forget the appeal.
I love the introductory paragraphs to the Order:
The piecemeal approach suggested by Oracle as a trial alternative will not be adopted. The docket simply does not permit that luxury. Counsel are unfortunate in having drawn a judge assigned to the massive MS-13 gang prosecution, which has resulted in four lengthy trials,
including one underway now, without any relief from the remainder of his normal caseload. This has led to a backlog of trial-ready cases waiting their turn. Between today and June 30, the Court has 28 cases already set for trial, including two patent cases (other than this one) and five other criminal cases, not counting trials set thereafter. In the instant case, the damages methodology must be sorted out before the case will even be trial-ready. Until then, there is no point in setting a firm trial date. If matters go smoothly herein and if other trial settings fall away, the instant case could still possibly be tried starting mid-April and all counsel and witnesses should reserve for that possibility, failing which it will likely occur sometime during the last four months of the year. This order, however, gives no assurances as to when the case can be tried. If Oracle wishes to voluntarily dismiss any damages claim, it will have to do so with prejudice; otherwise, a dismissal is nothing more than an invitation to piecemeal litigation.” Id. at 1-2.
If I were Oracle’s counsel, my first thought would have been, “oh suck,” or something much more vulgar that rhymed with suck.
So, needless to say, if Oracle loses its appeal, it’s going to owe Google a whole lot more money.