Oracle has opposed a "stay" in its lawsuit against Google over Google's use of Java in the Android mobile OS, in part because it says Google is actively targeting Oracle engineers in a recruitment drive.
"The prejudicial impact of such a delay would be particularly acute as Android continues to gain market share at a dramatic pace, growing at over 500,000 activations per day ... and as knowledgeable Oracle employees continue to be lost to turnover (many being hired away by Google)," Oracle's lawyers wrote.
The stay was suggested while Oracle's patents relating to Java, which it inherited when it acquired Sun Microsystems, are re-examined by the US Patent and Trademark Office as part of the process of the lawsuit.
Google's lawyers submitted in favour of the proposed stay.
In other legal moves, Google has offered the first public indication that it may be willing to settle the lawsuit.
Google and Oracle filed legal papers on Wednesday that provide the court with an update on the reexamination of Oracle's patents, and on whether they think the case should be "stayed", or put on hold, pending the outcome of that process.
Google says the reexaminations are likely to narrow the scope of the case and the damages Oracle can claim against it. Narrowing the case would also make it "more likely that the parties could reach an informal resolution of the matter," Google's lawyers wrote.
While Google doesn't say it is actively seeking a settlement, Wednesday's filing marks the first time it has said publicly that it may be open to the idea, said Florian Mueller, a patent attorney who has been following the case.
"In a fundamental departure from the positions it previously articulated in its public filings and its public statements, Google clearly blinks," Mueller wrote in his FOSS Patents blog.
Google did not immediately reply to a request for comment.
Oracle sued Google last August, saying its Android OS violates seven Java-related patents. Oracle has said it is seeking US$2.6 billion in damages for the alleged infringement. Google has strongly denied any wrongdoing and says Oracle's damages estimate is "breathtaking."
Any settlement would likely require Google to pay Oracle royalties for its use of Java in Android.
Oracle remains opposed to delaying the case, it said in Wednesday's filing. Besides the allegations of Google poaching Oracle engineers, delaying the case pending the reexaminations would also "surrender control" of the court's schedule to "an overburdened administrative agency," Oracle said.
Google asked the patent office to reexamine Oracle's patents soon after it filed its lawsuit. The PTO has issued preliminary "office actions" rejecting Oracle's claims in four of the patents, and upholding them in a fifth. Google says it expects office actions for the remaining two patents shortly. However, legal experts have cautioned against reading too much into the preliminary rulings, some of which Oracle has already appealed.
David Mixon, a patent lawyer with Bradley Arant Boult Cummings who has been following the case, said he thinks the judge is likely to stay the case, given that the patents are in the process of being reexamined.
- Additional reporting by David Watson