We’ve blogged a couple of times about Oracle America, Inc. v. Google Inc., on the Java code allegedly found in Android software and on Google strategy. Now we can take a look at one Oracle strategy, that of hiring Boston University professor Iain Cockburn to calculate and prove the alleged damages. We’ve seen this strategy before: hire as your expert the most published academic you can find, sometimes at a six-figure fee, and try to overwhelm the court. Will this work?
Through reading a Google pre-Daubert challenge filing, BVR glimpsed at Google’s response to the Oracle expert’s damages report and we took a long look at the professor’s CV. Obviously lacking is valuation credentials: no ASA, ABV, CFA, CVA, AVA, etc. We haven’t done the math, but a quick review of the cases in BVLaw shows courts tend to trust trained valuators, analysts bound by uniform standards and required to earn continuing education credits to maintain their status. He’s not in BVR’s Expert Directory. Though he is well-published, few articles are related to damages theory.
Professor Cockburn has argued in the damages report that Oracle is entitled to 50% of Google’s ad revenues on the Android mobile platform (a 50% royalty rate). Google contends their revenue from ads is not a part of the copyright infringement suit, that the patents allegedly infringed (7) do not generate ad revenue. Google argues, Professor Cockburn:
- Fails to tie the royalty rate to the infringement issue and ignores new “total market” law as defined in Uniloc and Lucent;
- Fails to provide any meaningful analysis of the 15 Goergia Pacific factors critical in determining a reasonable royalty;
- Includes Oracle’s “lost profits and opportunities” in his royalty base, in a realization Oracle could not meet the “recovery of lost profits” standard;
- Imputes in his royalty base theoretical downstream harm to a wholly different Oracle product;
- Uses improper methodology to develop an unprecedented royalty rate;
- Confuses patents and copyrights;
- Asserts that a finding of infringement of a single claim of a single patent should result in a finding of infringement for all claims;
- Dismisses evidentiary value of current Java licenses, previous Oracle/Google negotiations, and market value of (and Oracle’s own valuation of) the Java platform.