Wednesday, November 02, 2011

Google Versus Oracle

D. C. Toedt on 2 simple words that could have saved Google a huge headache.

Why "ATTN: LEGAL" in a draft email could have saved Google big-time grief:

Google is being sued by Oracle for what could be billions of dollars in damages for alleged patent infringement. The judge recently ruled that Oracle can show the jury a potentially-incriminating email written by a Google engineer. If the very first draft of the email had included “[ATTN: LEGAL]” in its subject line, Google’s lawyers might have legitimately withheld the email and its draft from Oracle’s lawyers.

The patents in question allegedly cover use of the Java programming system. Google was not licensed under the patents. According to a PC World story by James Niccolai, the Google engineer’s email said, in effect, we will need to negotiate a license for Java because the alternatives all suck. Google didn’t negotiate a license, though — and the judge in the case commented to the effect that that the email might suggest to the jury that Google was not just a patent infringer, but a willful infringer. That’s of special interest because a finding of willful infringement can lead to up to trebling of the damage award.

The Oracle lawyers might never have needed to see the “we need a license” email. That’s because the Google engineer, wisely, had included a Google attorney on the “to” list of the email. This apparently caused Google’s lawyers to withhold the final draft from Oracle, on grounds of attorney-client privilege. But the engineer’s earlier drafts of his email didn’t show the attorney as a recipient. Nor did the earlier drafts give any other express indication that the earlier drafts might also be legally privileged.

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